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Cross-Defendant Caritas Affordable Housing Inc.’s Opposition to Plaintiff’s Motion for Leave to File First Amended Complaint and Memorandum of Points and Authorities Ema SAMAYOA, Plaintiff, v. CITY OF VISTA and Does 1 - 25, inclusive, Defendants; City of Vista, Cross-Complainant, v. Caritas Affordable Housing, Inc. and Roes through 20, inclusive, Cross-Defendants. | Superior Court of California. Appended Content

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Earl H. Maas III Trial Court Documents

Ema SAMAYOA, Plaintiff, v. CITY OF VISTA and Does 1..., 2013 WL 5563594...

© 2013 Thomson Reuters. No claim to original U.S. Government Works. 2

2013 WL 5563594 (Cal.Super.) (Trial Motion, Memorandum and Affidavit) Superior Court of California.

San Diego County

Ema SAMAYOA, Plaintiff, v.

CITY OF VISTA and Does 1 - 25, inclusive, Defendants; City of Vista, Cross-Complainant,

v. Caritas Affordable Housing, Inc. and Roes through 20, inclusive, Cross-Defendants.

No. 37-2011-00059962-CU-PO-NC. February 15, 2013.

Cross-Defendant Caritas Affordable Housing Inc.’s Opposition to Plaintiff’s Motion for Leave to File First Amended Complaint and Memorandum of Points and Authorities

Lewis Brisbois Bisgaard & Smith LLP, Garth N. Ward, SB# 202965, E-Mail: [email protected], 701 B Street, Suite 1900, San Diego, California 92101, Telephone: 619.233.1006, Facsimile: 619.233.8627, Attorneys for Cross-Defendant, Caritas Affordable Housing, Inc.

Judge: Earl H. Maas, III.

Dept.: N-28 IMAGED FILE Action Filed: 11/21/2011 Trial Date: 11/30/12 Date: March 1, 2013 Time: 1:30 p.m. Cross-defendant Caritas Affordable Housing Inc., (“Caritas”) submits this memorandum of points and authorities in opposition to Plaintiff Ema Samayoa’s (“Samayoa”) motion for leave to file a first amended complaint.

TABLE OF CONTENTS

I. INTRODUCTION .........................................................................................................................................................................

1

II. STATEMENT OF THE FACTS / PROCEDURAL HISTORY ..................................................................................

2

A. The Pleadings .................................................................................................................................................................................

2

B. Discovery .........................................................................................................................................................................................

3

C. Vista’s Motion for Summary Judgment ................................................................................................................................

3

D. Samayoa Seeks Leave to Amend her Complaint, but Only After Vista’s Motion for Summary Judgment is Granted ..............................................................................................................................................................................................

4



III. THE COURT SHOULD EXERCISE ITS DISCRETION TO DENY SAMAYOA’S MOTION BECAUSE IT IS PROCEDURALLY DEFECTIVE AND DILATORY ......................................................................

5

A. The Court has Broad Discretion to Deny a Motion for Leave to Amend .................................................................

5

B. Samayoa’s Motion Fails to Comply With the California Rules of Court .................................................................

5

C. Samayoa was Dilatory, Which Is A “Valid Reason For Denial” .................................................................................

6

IV. SINCE CARTINAS IS NOT A “DOE” SAMAYOA’S MOTION MUST BE DENIED .................................

8

A. Caritas Is Not A Doe ...................................................................................................................................................................

8

B. The Complaint Does Not Contain Charging Allegations Against Doe 1 ..................................................................

10

V. SINCE CARITAS IS NOT A DOE, THE STATUTE OF LIMITATIONS HAS RUN .....................................

11

VI. CONCLUSION ...........................................................................................................................................................................

11

TABLE OF AUTHORITIES

Cases Atchison v. Superior Court (1966) 243 Cal.App.2d 289 ...............................................................................

5

Austin v. Massachusetts Bonding & Insurance Company (1961) 56 Cal.2d 596 .................................

10

Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1 ...................................................................

8

Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235 ............................................................

5

Camarillo v. Vaage (2003) 105 Cal.App.4th 552 ...........................................................................................

9

Coykendall v. Jackson (1936) 17 Cal.App.2d 729 ..........................................................................................

5

Davis v. Marin (2000) 80 Cal.App.4th 380 .......................................................................................................

8

Estate of Kelly (1960) 178 Cal.App.2d 24 .........................................................................................................

5

Foxborough v. Van Atta (1994) 26 Cal.App.4th 217 .....................................................................................

5

Fuller v. Tucker (2000) 84 Cal.App.4th 1163 ..................................................................................................

8, 9

Green v. Rancho Santa Margarita Mortgage Company (1994) 28 Cal.App.4th 686 .........................

7

Huff v. Wilkins (2006) 138 Cal.App.4th 732 .....................................................................................................

6

Hulsey v. Koehler (1990) 218 Cal.App.3d 1150 ..............................................................................................

7

M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc. (2012) 202 Cal.A pp.4th 1509 ............................

5, 6



Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471 .....................................................................

7

Melican v. Regents of University of Calif (2007) 151 Cal.App.4th 168 ..................................................

7

Munoz v. City of Palmdale (1999) 75 Cal.App.4th 367 ................................................................................

2

Munoz v. Purdy, (1979) 91 Cal.App.3d at 947 .................................................................................................

9, 10

P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332 ............................................

6

Pacific Coast Refrigeration, Inc. v. Badger (1975) 52 Cal.App.3d 233 .................................................

8

Randall v. Beber (1951) 107 Cal.App.2d 692 ..................................................................................................

8

Scherer v. Mark (1976) 64 Cal.App.3d 834 ......................................................................................................

9, 10

Stephens v. Berry (1967) 249 Cal.App.2d 474 .................................................................................................

8

Tostevin v. Douglas (1958) 160 Cal.App.2d 321 ............................................................................................

7

Williams v. Hilb, Rogal & Hobbs Ins. Services of California, Inc. (2009) 177 Cal.App.4th 624 ..

11

Winding Creek v. McGlashan (1996) 44 Cal.A pp.4th 933 .........................................................................

10

Woo v. Superior Court (1999) 75 Cal.App.4th 169 ........................................................................................

8

Statutes Cal. Code Civ ...............................................................................................................................................................

11

Cal. Rules of Court, rule 3.1324 ............................................................................................................................

6

California Rules of Court, rule 3.1324(b) ..........................................................................................................

6

California Rules of Court, rule 3.1324 ................................................................................................................

1

Code Civ. Proc., §473, subdivision (a)(1) ..........................................................................................................

5

Code Civ. Proc., § 474 ..............................................................................................................................................

8

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION Plaintiff Samayoa asks the court for leave to substitute Cross-Defendant Caritas as Doe 1 to her original complaint. She claims that her amended complaint simply substitutes Caritas for the City of Vista (“Vista”), and that all the causes of action existing against Vista will be alleged against Caritas. Other than making Caritas Doe 1, Samayoa claims that she is adding nothing new to her original complaint. Samayoa’s arguments are not consistent with the proposed amended complaint. The proposed amended complaint is not a



Doe amendment, but rather a brand new complaint directed against Caritas. Caritas is not being replaced with Doe 1. Doe 1 is identified in the original complaint as Vista’s agent and/or employee. (Complaint, page 2.) The two causes of action alleged in her new complaint were dismissed without leave to amend by Vista’s demurrer and motion to strike. Thus, Samayoa is not asking for leave to file a Doe amendment. Her motion is a backdoor attempt to revive a statute of limitations that has long run against Caritas. Samayoa’s motion must also be denied because Caritas is not a Doe, (and Caritas certainly cannot be added as Doe 1). Samayoa clearly knew Caritas’s identity and role prior to bringing suit. Caritas is her landlord, to whom she pays rent and with whom she originally complained before filing suit. Official city records establish that her accident occurred on property that was maintained, at least in part, by Caritas. Vista cross-complained against Caritas arising from the same incident. Claiming that Caritas is a Doe does not help the Samayoa, as her purported Doe amendment is barred by the doctrine of laches. Finally, Samayoa’s motion must be denied because it fails to comply with California Rules of Court, rule 3.1324. Her motion is dilatory, and the causes of action are barred by the statute of limitations. The court should deny Samayoa’s motion and allow this case to be dismissed in its entirety as contemplated by the court’s ruling on Vista’s motion for summary judgment.

II. STATEMENT OF THE FACTS / PROCEDURAL HISTORY

A. The Pleadings

Samayoa sued Vista, on November 21, 2011, for damages she claims to have suffered in November 2010, by stepping on a drainage cover placed on the street. She claims that Vista failed to maintain, clean, rent and / or possess the premises. She alleged “Defendant had the duty to inspect for and correct the dangerous condition which duty was breached. As a direct and proximate result of defendants’ conduct, and of their negligence, plaintiff suffered and continues to suffer severe bodily injuries and other damage in connection therewith.” (Complaint, page 5, Exhibit 11.) 1

Exhibits refer to the declaration of Garth Ward, attached hereto.

Samayoa’s complaint contained three causes of action: (1) general negligence; (2) premises liability; and (3) dangerous condition of public property, government code section 835. (Complaint, p. 1-6.) In addition to naming Vista, Samayoa identified Does 1 -10 in each cause of action. Does 1 -10 were identified as Vista’s agents or employees. (Complaint, page 2.) Samayoa also named Does 11- 25 in each cause of action identifying these Does as “persons whose capacities are unknown to plaintiff.” (Ibid.) Vista challenged Samayoa’s complaint by demurrer and motion to strike, which were heard together on March 23, 2012. The court sustained Vista’s demurrer without leave to amend as to Samayoa’s first cause of action for general negligence. The court struck the general negligence component of Samayoa’s second cause of action. The court found that the Samayoa could maintain only her statutory claims. It dismissed the common law claims with prejudice. Defendant City of Vista’s unopposed general demurrer to Plaintiff’s first cause of action for negligence is sustained without leave to amend. Except as otherwise provided by statute, a public entity is not liable for injury. (Government code, section 815.) Public entity liability “must be based on statutory not common law.” (Munoz v. City of Palmdale (1999) 75 Cal.App.4th 367, 369.) Accordingly, Plaintiff may not maintain her common law cause of action for negligence. ¶ Defendant City of Vista’s motion to strike the negligence count from Plaintiff’s second cause of action for premises liability is granted without leave to amend, for the reasons stated above. (Notice of Rule, attachment, p. 1, Exhibit 2.) Vista cross-complained against Caritas in July 2012, for indemnity. Vista claimed that Caritas was responsible for



maintaining the roadway where Samayoa allegedly injured herself. It sought to shift responsibility to Caritas for any alleged damage. (Exhibit 3.)

B. Discovery

Caritas undertook a public records request after being served with Vista’s cross-complaint. Vista responded within approximately 10 days, providing information that the roadway, where Samayoa allegedly fell was privately maintained. The documents produced were public records available to anyone via an internet based public records request. Also, Samayoa responded to discovery by admitting that she complained to Caritas after the incident, even filling out Caritas’s complaint form at its office. (Exhibit 4.) In October and November 2012, Vista responded to interrogatories, stating that Caritas owned, operated and controlled the roadway where Samayoa allegedly tripped and fell and verified same. (Exhibit 5.) Plaintiff never took a single deposition of any Caritas representative to explore the issue of control of the street where the incident occurred. Plaintiff did take a deposition of Vista’s “Person Most Knowledgeable” wherein they testified that Vista did not own or maintain the subject premises.

C. Vista’s Motion for Summary Judgment

In September 2012, Vista moved for summary judgment as against the only claim remaining in Samayoa’s complaint. Vista argued that Samayoa fell on a private driveway, which it does not control, and claimed that it had no notice of any alleged defect with the roadway. It produced the declaration of a Vista employee, who testified that the location where Samayoa allegedly fell was privately owned. Samayoa opposed the Vista’s motion for summary judgment. Samayoa set forth all of the Vista’s arguments as to why Caritas was allegedly responsible for maintaining the area where Samayoa fell. She identified sundry pieces of evidence upon which the Vista was relying to show that Caritas maintained, in part, the property where she was injured. She argued that the degree of the Vista’s responsibility was a question of fact. Vista’s motion for summary judgment was granted. The Court found that the Vista did not have notice of any alleged defect; therefore, Vista was not responsible for the alleged incident.

D. Samayoa Seeks Leave to Amend her Complaint, but Only After Vista’s Motion for Summary Judgment is Granted

On January 15, 2013, Samayoa moved ex parte for an order shortening time on a motion to file a first amended complaint. Samayoa’s ex parte papers included her motion for leave to amend. The motion seeks to “add Caritas Affordable Housing Inc. (“Caritas”) as a defendant.” (Motion, page 2, line 5-8.) In her points and authorities, Samayoa claims that she is seeking to add Caritas as “Doe 1 defendant in the proposed First Amended Complaint under the same allegations and causes of action asserted in the original complaint.” Samayoa’s motion states “The First Amended Complaint will asset the same cause of action and allegations previously asserted against the City of Vista and while the proposed First Amended Complaint will change the name from the City of Vista to Caritas, it will not add or modify the original causes of action or allegations.” Mr. Finn’s declaration confirms that he will not be adding or changing any of the allegations in the original complaint, but will simply be substituting Affordable for the City of Vista. “While the proposed First Amended Complaint will change the name from City of Vista to Caritas, it will not add or modify the original causes of action or allegations.” (Motion, p. 8, lines 18-21.) The motion, points and authorities, and declaration of Mr. Finn contradict the complaint, which is attached as an Exhibit to the moving papers. The exhibit is not a Doe amendment, but rather a brand new complaint seeking to revive the common law causes of action that were disposed of in March 2012, by the City of Vista’s pleading based challenge. Samayoa claims that she is adding Caritas as “Doe 1”. She is not. Doe 1 is identified in the original complaint as the agents or employees of the City of Vista. (Complaint, page 2.) Additionally, the motion does not address why Samayoa waited until after summary



judgment was granted to seek to add Caritas as Doe. It does not comply with the California Rules of court, is dilatory and unduly prejudices Caritas. It should be denied.

III. THE COURT SHOULD EXERCISE ITS DISCRETION TO DENY SAMAYOA’S MOTION BECAUSE IT IS PROCEDURALLY DEFECTIVE AND DILATORY

A. The Court has Broad Discretion to Deny a Motion for Leave to Amend

Whether to grant leave to amend a pleading is a decision that is within the trial court’s sound discretion. (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230; Coykendall v. Jackson (1936) 17 Cal.App.2d 729, 730, [“[T]he filing of an amended complaint is not a matter of absolute right.”].) In Atchison v. Superior Court (1966) 243 Cal.App.2d 289, 296, the court held, “the matter of permitting an amendment, in the final analysis, is within the legal discretion of the trial court.” Additionally, “it is the duty of the person applying for permission to amend to place such material before the trial court as will show to the trial judge that the ends of justice will be served by permitting such amendment.” (Estate of Kelly (1960) 178 Cal.App.2d 24, 32.) “Leave to amend a complaint is thus entrusted to the sound discretion of the trial court.” (M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc. (2012) 202 Cal.App.4th 1509, 1534.) “... The exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse. More importantly, the discretion to be exercised is that of the trial court, not that of the reviewing court. Thus, even if the reviewing court might have ruled otherwise in the first instance, the trial court’s order will ... not be reversed unless, as a matter of law, it is not supported by the record.’ ” [Citations.]” (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) Here, the court should exercise its discretion to deny Samayoa’s motion for leave to amend. The motion is procedurally defective and dilatory. It seeks to name Caritas as Doe 1. Caritas cannot be Doe 1 because it is not an agent or employee of Vista, and because Samayoa knew Caritas’ identity and role prior to bringing this lawsuit. Finally, any Doe amendment should be denied due to the doctrine of laches, and because the amendment is futile.

B. Samayoa’s Motion Fails to Comply With the California Rules of Court

Code of Civil Procedure section 473, subdivision (a)(1) provides for the opportunity to amend a complaint. All motions to amend must be supported by a declaration specifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and reasons why the request for amendment was not made earlier. (Cal. Rules of Court, rule 3.1324.) The declaration serves to establish that the amended complaint is not the product of unwarranted delay. “ ‘[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may -- of itself -- be a valid reason for denial.” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746; see also P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345.) Samayoa’s motion is defective because it fails to comply with California Rules of Court, rule 3.1324(b). Mr. Finn’s declaration does not properly address California Rules of Court, rule 3.1324(b), failing to assure the court that the motion is not the product of unwarranted delay. Specifically, the declaration is defective because it claims that the effect of the amendment is simply to substitute Caritas for Doe 1 in the causes of action asserted against Vista. Doe 1, however, is an agent or employee of Vista. Caritas is neither. The declaration fails to explain how the amendment is necessary and proper. The claim is not necessary or proper because Vista is only sued as a governmental agency. Replacing Caritas with Vista (as Samayoa suggests she is doing) is inappropriate because Caritas is not a governmental agency and the remaining cause of action is clearly inapplicable. Finally, the declaration fails to set forth facts showing when Samayoa learned of Caritas’s role and based upon the pleadings and discovery why Samayoa waited so long to sue Caritas. Samayoa knew Caritas was her landlord in 2010. By July, she knew that Vista claimed that Caritas maintained the property. By September she was capable of setting forth all of Vista’s arguments as to why Caritas was responsible. Yet, she waited until the court was ready to dismiss the entire lawsuit to state a



claim against Caritas. The declaration does not address these facts.

C. Samayoa was Dilatory, Which Is A “Valid Reason For Denial”

If a party seeking amendment has been dilatory and/or the delay has prejudiced or will prejudice the opposing party, the trial court in its discretion may deny leave to amend. (See, M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc., supra, 202 Cal.App.4th at p. 1534.) “Unwarranted delay, without more can be a valid reason for denying a motion to amend [citation].” (Englert v. IVAC Corp. (1979) 92 Cal.App.3d 178, 190.) Delay coupled with prejudice to the opposing party may compel such denial. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) The Court is not required to tolerate a purported amended complaint that is violative of orderly judicial administration. (Tostevin v. Douglas (1958) 160 Cal.App.2d 321, 331). The rule liberally permitting amended complaints “should be applied only ‘[w]here no prejudice is shown to the adverse party.’ (Magpali v. Farmers Group, Inc., supra, 47 Cal.App.4th at p. 1024; Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.) In Green v. Rancho Santa Margarita Mortgage Company (1994) 28 Cal.App.4th 686, 6903-694, the court explained that prejudice exists when a proposed amendment to a pleading contains a new legal theory, for which additional discovery would be necessary. This same rationale was applied to uphold a court order denying leave to amend a complaint on the eve of trial. (Magpali, supra, 48 Cal.App.4th at 486.) In Melican v. Regents of Univ. of Calif (2007) 151 Cal.App.4th 168, 176, the court found it patently unfair for a defendant to be defending a moving target, and denied leave to amend on that basis. Here, Samayoa knew that Caritas had some role in controlling, maintaining or owning the property upon which she fell prior to filing the lawsuit. She clearly understood Caritas’s potential liability in July 2012 when Caritas was sued on a cross-complaint. Caritas did not move to amend her complaint in the face of discovery, which was directed at Caritas’s role in owning and maintain the property where she fell. In opposition to Vista’s summary judgment, Samayoa demonstrated her knowledge of Vista’s arguments regarding Caritas’s liability. She sought leave to amend, but only after summary judgment was granted, and the case on the eve of dismissal. Samayoa provides no evidence that her delay in adding Caritas was warranted. She does not explain how she suddenly determined that Caritas might responsible, or why she should be excused for waiting so long to sue Caritas. Accordingly, her motion must be denied. Samayoa’s attempt to couch her new complaint as a Doe amendment does not alter the analysis. Laches prevents a plaintiff from relying on the Doe statute when the plaintiff unreasonably delays in bringing a motion for leave to amend the complaint. “[S]ubstantial authority supports respondents’ argument that unreasonable delay in filing an amendment after actually acquiring such knowledge can bar a plaintiff’s resort to the fictitious name procedure.” (Barrows v. Am. Motors Corp. (1983) 144 Cal.App.3d 1, 8; Randall v. Beber (1951) 107 Cal.App.2d 692, 708-709.) Samayoa slept on her rights and was dilatory in moving for leave to amend. To argue now that she did not have facts sufficient to proceed against Caritas is not founded in fact. Plaintiff was simply not diligent and this results in an unwarranted delay. “[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may - of itself- be a valid reason for denial.” (Huff v. Wilkins, supra, 138 Cal.App.4th at p. 746.) Samayoa does not have a good amendment, and her motion is not in proper form; a fortiori, her motion must be denied.

IV. SINCE CARTINAS IS NOT A “DOE” SAMAYOA’S MOTION MUST BE DENIED

Code of Civil Procedure section allows a plaintiff to name fictitious defendants, or “Does.” The complaint must state a cause of action against each Doe defendant. (Pacific Coast Refrigeration, Inc. v. Badger (1975) 52 Cal.App.3d 233, 249-250.) It must allege that the plaintiff is ignorant of the Doe defendant’s name. (Code Civ. Proc., § 474; Stephens v. Berry (1967) 249 Cal.App.2d 474, 477.) The plaintiff must actually be ignorant of the Doe defendant’s name, i.e., “ignorant of the facts giving rise to a cause of action against that defendant.” (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.) When the plaintiff discovers a Doe defendant’s true name, he or she must amend the complaint accordingly. (Code Civ. Proc., § 474.)



Section 474’s procedural requirements are mandatory. (Stephens v. Berry, supra, 249 Cal.App.2d at p. 477.) Failure to comply with Code of Civil Procedure section 474 prevents the amendment from relating back. (Davis v. Marin (2000) 80 Cal.App.4th 380, 387.)

A. Caritas Is Not A Doe

In Woo v. Superior Court (1999) 75 Cal.App.4th 169, the plaintiff brought a medical malpractice action against a hospital, two doctors, and 50 Doe defendants. (Id. at pp. 169-170.) More than 1 year after discovering her injury, plaintiff filed an amended complaint substituting a new doctor as a defendant in place of the original defendants. The new doctor moved for summary judgment on the ground that the action against him was barred by the 1-year statute of limitations. The trial court denied the motion, treating the amended complaint as the functional equivalent of the substitution of a party for a fictitious Doe defendant, and finding that the time for filing the amended complaint related back to the date of filing of the original complaint. The new doctor sought a writ of mandate from the court of appeal, asking the court to overturn the denial of his motion for summary judgment. The court of appeal agreed. It held that relation back applies only if the plaintiff is genuinely ignorant of the new defendant’s identity when the original complaint was filed. (Id. at p. 177.) The omission of the defendant’s identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of the statute. (Ibid.) If this requirement is not met, a new defendant may not be added after the statute of limitations has expired even if he or she is not prejudiced by the delay. Samayoa seeks leave to file her first amended complaint against Caritas on the theory that Caritas is Doe. She argues that, since Caritas is a Doe her causes of action relate back to the original filing of her lawsuit. Caritas is not a Doe because Samayoa was not genuinely “in the dark” regarding Caritas’s name or identity. (Camarillo v. Vaage (2003) 105 Cal.App.4th 552, 563-564.) Samayoa went to Caritas to complain about the incident after it happened and prior to bringing suit. She paid rent to Caritas. Public records, which she easily could have requested over the internet, would have established that the land on where she slipped was privately owned or maintained. In Scherer v. Mark (1976) 64 Cal.App.3d 834, 841 the court emphasized that “[i]gnorance of the facts giving rise to a cause of action, like ignorance of the true name, should be real and not feigned.” (See also Munoz v. Purdy, (1979) 91 Cal.App.3d at 947.) The relevant inquiry is what facts the plaintiff actually knew at the time the original complaint was filed. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.) Samayoa knew, or should have known Caritas’s role when she filed her complaint. This much is indisputable. In Motor City Sales v. Superior Court (Proulx), (1973) 31 Cal.App.3d 342, the court held that relation back requires “good faith ignorance of the true name of a fictitiously designated defendant.” (Id. at p. 346.) This requirement ensures against abuse of the statute, primarily by requiring those whose names and connection with the cause of action are known to be named and served in order that they may properly prepare their defenses.” (Id. at 346.) In Scherer, supra, the plaintiff sued a hospital and DOE defendants alleging that as a result of their negligence she fell and was injured while hospitalized. Plaintiff sought and was precluded from designating her physician as a Doe. The court found that, at the time she filed suit, the Plaintiff knew that her physician had hospitalized her, even though he as not present at the hospital where her injury occurred. The court was not persuaded by plaintiff’s claim that, “the exact basis for the negligence of Dr. Mark did not become exactly apparent until the two depositions were [taken].” (Id. at 839.) Instead, the court concluded that the plaintiff “knew all of the basic facts constituting her alleged cause of action when she first filed her original complaint” (Id. at p. 841.) The court was obligated to deny the Doe amendment because “[n]owhere in any pleadings or declarations did plaintiff ever say what new facts she discovered.” (Id. at 841.) Here, Samayoa clearly knew all of the basic facts constituting her alleged cause of action when she filed her original complaint. Nowhere in her motion, her declaration or her amended complaint does she plead what new facts she discovered, to suddenly seek to name Caritas as a defendant. The only new fact is the granting of Vista’s motion for summary judgment. Samayoa should not be allowed utilize the subterfuge of a Doe amendment to amend her complaint.



B. The Complaint Does Not Contain Charging Allegations Against Doe 1

To add a defendant as a “Doe” the original complaint must contain charging allegations against the defendant. (Austin v. Massachusetts Bonding & Insurance Company (1961) 56 Cal.2d 596, 600-601.) The charging allegations must state a valid claim against the Doe. The charging allegations must state that the defendant is responsible for the acts complained of. (Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 941.) The plaintiff can divide the Doe defendants into groups and allege that some Doe defendants are responsible for certain reasons, and other Doe defendants for other reasons. (Ibid.) Here, Samayoa claims that Doe defendants 1 -10 are responsible as Vista’s employees and agents. She now seeks to add Caritas as Doe 1. Caritas is not Vista’s agent or employee and therefore cannot be added as Doe 1. Samayoa’s motion is defective and must be denied.

V. SINCE CARITAS IS NOT A DOE, THE STATUTE OF LIMITATIONS HAS RUN

In the event proposed amendments to a complaint fail to state a cause of action against the defendant, the court may deny leave to amend, and that decision will not be disturbed on appeal. (Foxborough, supra, 26 Cal.App.4th at p. 230.) Here, the proposed amended complaint fails on statute of limitations grounds, assuming arguendo that the complaint even contains a negligence cause of action. Accordingly, the court should deny leave to amend. The statute of limitations for a cause of action for negligence is two years. (Cal. Code Civ. Proc. § 339(1); “C.C.P. 339(1) governs actions based on negligent wrongs not involving injuries to persons or real or tangible personal property, e.g. negligent performance of professional duties.” (3 Witkin, Cal. Proc., Actions, § 576, p. 730.) The statute of limitations begins to run “when the cause of action is complete with all of its elements.” (Williams v. Hilb, Rogal & Hobbs Ins. Services of California, Inc. (2009) 177 Cal.App.4th 624, 641.) Samayoa’s alleged injury occurred in November 2010. She did not bring her motion for leave to amend until January 2013, months after the statute has run. Since Caritas is not a Doe, her claim does not relate back and the statute of limitations has run. The court should deny leave to permit a futile amendment.

VI. CONCLUSION

Caritas asks the court to deny Samoyoa’s motion, for the reasons set forth herein. DATED: February 15, 2013 LEWIS BRISBOIS BISGAARD & SMITH LLP By: <<signature>> Garth N. Ward Attorneys for Cross-Defendant CARITAS AFFORDABLE HOUSING, INC.

End of Document


Ema SAMAYOA, Plaintiff, v. CITY OF VISTA and Does 1 - 25, inclusive, Defendants; Ci...


Filings (4)

Title PDF Court Date Type

1. Complaint-Personal Injury, Property Damage, Wrongful Death Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 to 25, inclusive, Defendant. 2011 WL 11018893

Cal.Super. Nov. 21, 2011 Pleading

2. Memorandum of Points and Authorities in Support of Defendant City of Vista’s Motion to Compel Responses by Plaintiff Ema Samayoa to Form Interrogatories (Set One) and Special Interrogatories (Sets One Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 to 25, inclusive, Defendants. 2012 WL 9297756

Cal.Super. Apr. 4, 2012 Motion

3. Defendant City of Vista’s Notice of Motion and Motion to Strike Portions of Plaintiff’s Complaint; Memorandum of Points and Authorities; Declaration of Lee H. Roistacher Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 to 25, inclusive, Defendants. 2012 WL 9297742

Cal.Super. Jan. 27, 2012 Motion

4. Docket 37-2011-00059962-CU-PO-NC EMA SAMAYOA v. CITY OF VISTA

— Cal.Super. Nov. 21, 2011 Docket



Appellate History (4)

Direct History (1)

1. Samayoa v. City of Vista 2013 WL 5590853 , Cal.Super. , Mar. 01, 2013

Related References (3) 2. Samayoa v. City of Vista 2012 WL 9320974 , Cal.Super. , Mar. 23, 2012

3. Samayoa v. City of Vista 2013 WL 5590857 , Cal.Super. , Jan. 04, 2013




Related Opinions (2)

Title Court Date

1. Samayoa v. City of Vista 2013 WL 5590853

All parties, submit(s) on the Court’s tentative ruling. The Court CONFIRMS the tentative ruling as follows: Plaintiffs motion for leave to file first amended complaint is denied....

Cal.Super. Mar. 1, 2013


The Court hears oral argument and CONFIRMS the tentative ruling as follows: Defendant City of Vista’s unopposed general demurrer to Plaintiff’s first cause of action for negligence...



General Verdict Form Hilary OLDHAM, Matthew Jensen, Plaintiffs, v. Jonathan COBURN, Dawn Lacross, and Does (1-50) Inclusive, Defendants. | Superior Court of California Appended Content

Filings History Related Opinions/Dockets



Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:


Hilary OLDHAM, Matthew Jensen, Plaintiffs, v. Jonathan..., 2012 WL 7658602...


2012 WL 7658602 (Cal.Super.) (Verdict, Agreement and Settlement) Superior Court of California,

North County Division. San Diego County

Hilary OLDHAM, Matthew Jensen, Plaintiffs, v.

Jonathan COBURN, Dawn Lacross, and Does (1-50) Inclusive, Defendants.

No. 37-2011-00054633-CU-PA-NC. December 6, 2012.

General Verdict Form

Hon. Earl H. Maas, III.

Dept N-28 Complaint Filed: 5-24-11 Trial Date: 12/03/12 We find in favor of Matthew Jensen and finds damages to Matthew Jensen in the amount of $ 160,000. Signed: <<signature>> Presiding Juror/Foreperson Dated: 12/6/12 *After it has been signed, deliver this verdict form to the bailiff.

End of Document


Hilary OLDHAM, Matthew Jensen, Plaintiffs, v. Jonathan COBURN, Dawn Lacross, an...


Filings (12)


1. Complaint for Personal Injuries Hilary OLDHAM, Matthew Jensen, Plaintiff, v. Jonnathan COBURN, Dawn Lacross, and Does (1-50) Inclusive, Defendants. 2011 WL 10482443

Cal.Super. May 24, 2011 Pleading

2. Plaintiff’s Motion to Exlude Expert Testimony for Defendants’ Unreasonable Failure to Comply With Exchange Rules (CCP § 2034.300);) Declaration of H. Gavin Long Proposed Order Hillary OLDHAM; Matthew Jensen, Plaintiffs, v. Jonathan COBURN; Dawn Lacross; and Does 1 through 50, Defendants. 2012 WL 7658464

Cal.Super. Nov. 21, 2012 Motion

3. Plaintiffs’ Opposition to Defendants’ Motion to Strike Punitive Damages Hilary OLDHAM, Matthew Jensen, Plaintiff, v. Jonathan COBURN, Dawn Lacross, and Does (1-50) Inclusive, Defendants. 2011 WL 10482475


4. Notice of Motion and Motion to Strike Punitive Damage Allegations from Plaintiff’s Complaint; Memorandum of Points and Authorities; and, Declaration in Support Thereof Hilary OLDHAM, Matthew Jensen, Plaintiffs, v. Jonathan COBURN, Dawn Lacross, and Does (1-50) Inclusive, Defendants. 2011 WL 10482469


5. (Report or Affidavit of Richard Greenfield, M.D.) Hilary OLDHAM, et al, v. Jonathan COBURN, et al. 2012 WL 8261741

Cal.Super. Jun. 21, 2012 Expert Materials

6. (Report or Affidavit of Richard Greenfield, M.D.) OLDHAM, v. COBURN. 2012 WL 8318977


7. 2012 WL 8123307, 19 Trials Digest 16th 30 Oldham vs. Coburn

— Cal.Super. Dec. 18, 2012 Jury Verdict

8. Docket 37-2011-00054633-CU-PA-NC HILARY OLDHAM v. JONATHAN COBURN

— Cal.Super. May 24, 2011 Docket


— Cal.Super. Dec. 18, 2012 Expert Court Document


Cal.Super. Jun. 21, 2012 Expert Court Document






12. Plaintiff’s Motion to Exlude Expert Testimony for Defendants’ Unreasonable Failure to Comply With Exchange Rules (CCP § 2034.300);) Declaration of H. Gavin Long Proposed Order Hillary OLDHAM; Matthew Jensen, Plaintiffs, v. Jonathan COBURN; Dawn Lacross; and Does 1 through 50, Defendants. 2012 WL 7658464

Cal.Super. Nov. 21, 2012 Expert Court Document




Direct History (1)

1. Oldham v. Coburn 2012 WL 7659886 , Cal.Super. , Dec. 18, 2012

Related References (3) 2. Oldham v. Coburn 2012 WL 7659885 , Cal.Super. , Jan. 06, 2012






Title Court Date

1. Oldham v. Coburn 2012 WL 7659886

Dept.: NC-28 File Date: May 24, 2011 Trial Date: December 3, 2012 The above-entitled case came on for contested trial on December 3, 2012, in Department NC-28 of the above-entitled...

Cal.Super. Dec. 18, 2012


TIME: 09:00:00 AM DEPT: N-28 CLERK: Noreen McKinley REPORTER/ERM: Christina Lother CSR# 8624 BAILIFF/COURT ATTENDANT: CASE INIT.DATE: 05/24/2011 CASE CATEGORY: Civil -Unlimited...






TIME: 01:30:00 PM DEPT: N-28 CLERK: Lynn Arthur REPORTER/ERM: Not Reported BAILIFF/COURT ATTENDANT: C. Lauraitis CASE INIT.DATE: 05/24/2011 CASE CATEGORY: Civil - Unlimited CASE...

Cal.Super. Jan. 6, 2012


Plaintiff’s Opposition to Motion for Summary Judgment; Declaration of Emma Samayoa and Exhibits. Emma SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 through 25, inclusive, Defendants. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:


Emma SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does..., 2012 WL 9297743...


2012 WL 9297743 (Cal.Super.) (Trial Motion, Memorandum and Affidavit) Superior Court of California,


Emma SAMAYOA, Plaintiff, v.

CITY OF VISTA; and Does 1 through 25, inclusive, Defendants.

No. 37-2011-00059962-CU-PO-NC. November 27, 2012.

Plaintiff’s Opposition to Motion for Summary Judgment; Declaration of Emma Samayoa and Exhibits.

Robert P. Finn (SBN 44475), Law Offices of Robert P. Finn, 9121 Haven Avenue, Suite 150, Rancho Cucamonga, California 91730, Telephone: (909) 568-2000, Facsimile: (909) 568-2020, Attorneys for Plaintiff Emma Samayoa.

Honorable Earl H. Maas, III.

(Response to Separate Statement of Undisputed Material Facts is filed concurrently herewith.) Date: December 14, 2012 Time: 1-30 p.m. Dept: N-28 The plaintiff, Emma Samayoa (“Plaintiff”), hereby opposes the Motion for Summary Judgment of the defendant, City of Vista (“City”), as follows:

I. STATEMENT OF FACTS

On November 13, 2010, around 5:00 to 5:30 p.m., when there was still some sunlight, Plaintiff and her husband left their home and were walking down the street in their mobile home park, where there were no sidewalks, to a barber shop just outside the park. (Plaintiff’s Depo 33-35) Plaintiff was walking normally with her husband when she suddenly tripped and fell in an area of the street where the City’s manhole cover was sunken below the grade of the asphalt pavement creating a raised jagged uneven edge of asphalt around the parameter of the manhole cover (City’s Exhibit A, Plaintiff’s Depo., pp. 41-44; Declaration of Plaintiff). (A true and correct copy of a photos provided by plaintiff in discovery are attached as Exhibit 1). The height of the raised asphalt edge where plaintiff tripped was around one and a half inches high. (Declaration of Plaintiff, ¶ 3; City’s Exhibit A, 46:18-25)

II. SUMMARY OF ARGUMENT

Defendant City’s property (manhole opening and pavement around the manhole opening) was in a condition to pose a danger to people walking on the road. The road where plaintiff tripped and fell is in a mobile home park where there are no sidewalks. Plaintiff used the street as the only means of exiting the mobile home park on foot and she was injured due to this



dangerous condition of public property (Declaration of Plaintiff, ¶ 4; City’s Exhibit A). Defendant City created the dangerous condition when it negligently installed the manhole cover too low or omitted to raise the manhole cover when it re-asphalted the road. (Exhibit 2) The City had notice of the dangerous condition. (Exhibit 2)

III. LEGAL ARGUMENT

A. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON THE ISSUE OF PREMISES LIABILITY

Plaintiff has brought forth evidence by which a trier of fact could conclude that defendant is liable under the theory of premises liability for a dangerous condition of public property. “In general, whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.” Peterson v. San Francisco Community College Dist. (1984) 36 Cal 3d 799, 810. Under California Government Code §835, there are six elements which Plaintiff must prove in order to establish the right to damages as a result of premises liability for a dangerous condition of public property. In its motion, Defendant City controverts three of those elements: 1) Whether the damaged sidewalk was a dangerous condition; or minor, trivial, and insignificant as a matter of law, and 2) Whether the City created the dangerous condition; or 3) Whether defendant had notice of the condition.

1. Dangerous Condition

Under California Government Code §830, a dangerous condition is a condition of public property that creates a substantial risk of injury to members of the general public who are using the property with reasonable care and in a reasonably foreseeable manner. A condition that creates only a minor risk of injury is not a dangerous condition. In their motion for summary judgment, Defendant City asserts the condition of the manhole cover and the raised jagged asphalt surrounding the manhole cover was not a dangerous condition because the condition was minor, trivial, and insignificant.

a) Trivial Defect

Under California Government Code §830.2, a condition is not a dangerous condition within the meaning of this chapter if the court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used. Defendant City cites Fielder v. City of Glendale (1977) 71 Cal App 3d 719, to argue that the condition Plaintiff encountered was a trivial defect. In Fielder, the plaintiff tripped over an elevated edge of two adjoining slabs of the sidewalk, where there was a depression three-fourths inches at most and nearer to a half an inch at its deepest point. Fielder at 721. In the present case, Plaintiff tripped over a sunken manhole cover approximately two feet in diameter with a jagged edge raised around one and a half inches high. (Declaration of Plaintiff, ¶ 3, 46:25). In Fielder, at 726, the court stated when the size of the depression begins to stretch beyond one inch, the courts have been reluctant to find that the defect is not dangerous as a matter of law.



The Fielder Court held that the proper analysis was to examine the defect and its surrounding circumstances, considering the size and quality of the defect, the conditions of the accident, and whether others had been injured by the same defect. Here, the one to one and a half inch sunken ‘hole’ in the street was caused when the City’s employees positioned the manhole cover too low when it was originally installed or the City’s employees omitted to raise the manhole cover at the time the street was re-asphalted. The condition in this case presents a much larger depression and dangerous defect than a one-half to three-quarter inch raised edge of a segment in the sidewalk, like that in the Fielder. Furthermore, in Fielder and unlike the present case, the defect consisted of a difference in the level of two adjoining slabs of sidewalk (Fielder at 721), not a jagged asphalt edge. In Stathoulis v. City of Montebello (2008) 164 Cal. App. 4th 559, the plaintiff’s heel got caught in two depressions in the city street pavement causing her to fall and strike the pavement, resulting in injury. The defendant City had been granted summary judgment at the trial level which ruled the potholes over which plaintiff had tripped were a trivial defect, and therefore not a dangerous condition under Gov Code §§ 830, 835, and therefore, the city was not liable. The question for the Court of Appeal was whether the circumstances presented a triable factual issue as to whether the depressions in the city street on which plaintiff tripped constituted a dangerous condition under Gov Code §§ 830, 835, and if so, whether the defect was conspicuous enough to place the entity on notice under Gov Code §835. In coming to its conclusion, the court in Stathoulis stated the legal analysis involves several steps. First, the court reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors that may indicate the defect was dangerous. Stathoulis at 567; Fielder at 729. The court proceeds to discuss the specific defect in the case, as being “about one inch deep,” noting several prior decisions have found depressions or elevations up to one and one half inches trivial as a matter of law. The court continues, “However, it is also true that as ‘the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law.’ ” Stathoulis at 568; Fielder at 726. The court goes on to state, although the size alone is not determinative of whether a rut presents a dangerous condition, it is the most important factor for determining whether a given defect may be deemed trivial as a matter of law. Stathoulis at 568; Fielder at 726. The court states further “one of three most important analytical factors is the nature of the defect and a condition is less likely to be deemed trivial as a matter of law if “comprised of large sections of broken concrete...” Stathoulis at 569. The court, at times, referred to the about one inch deep holes in the concrete as “potholes.” Stathoulis at 569. The court in Stathoulis concluded a triable issue exists regarding the degree of dangerousness and whether the defect presented a substantial risk of injury, and if so, whether the city had notice of the dangerous defect, and therefore, the trial court erred in finding the defect trivial as a matter of law. Stathoulis at 569. In Dolquist v. City of Bellflower 196 Cal. App. 3d 261 (1987), where the Court of Appeal also ruled in favor of the plaintiff and against summary judgment after plaintiff tripped and fell in a city parking lot due to a defect. The defect was a parking abutment with a quarter inch rebar protruding from the top. In ruling for plaintiff, the Court noted a distinguishing determination between a trivial defect, a mere difference in elevation between two adjacent slabs in the sidewalk, versus other dangerous defects such as a protrusion. Dolquist at 268. In the present case, as can be seen by the photographs attached as Exhibit 1, the depression in the street which caused Plaintiff to trip and fall was not only one inch+ in height, but it also had jagged asphalt edges. Therefore, the defect in this case is not only comparable to the defect in the Stathoulis case, and possible more dangerous. Whereas both the defects in the Stathoulis case and the present case were jagged holes in the pavement, in the Stathoulis case the defect was one inch deep, whereas the defect in the present case was more than one inch deep (Declaration of Plaintiff, ¶ 3).

b) Contributory Negligence

In its motion for summary judgment, defendant City argues that “plaintiff even admitted that she was not looking where she was going when she fell.” (MSJ, 6:17) Defendant is not entitled to summary judgment simply by establishing facts that tend



to show that plaintiff was contributorily negligent. Plaintiff is not required to prove the absence of contributory negligence in order to establish that defendant created a dangerous condition. Fredette v. City of Long Beach, 187 Cal App 3d 122, 131 (1986). If that were the case, proof of contributory negligence would be a complete bar for any claim against a public entity for a dangerous condition. The Fredette court stated,

The negligence of plaintiff user of public property, therefore, is a defense which may be asserted by a public entity; it has no bearing upon the determination of a ‘dangerous condition’ in the first instance. So long as a plaintiff user can establish that a condition of the property creates a substantial risk to any foreseeable user of the public property who uses it with due care, he has successfully alleged the existence of a dangerous condition regardless of his personal lack of due care. Fredette at 131.

In order to prove that a dangerous condition does not exist, the defendant is required to prove that the condition posed no more than a trivial danger to any person who is using the property in a reasonably foreseeable manner and with reasonable care. This is an objective standard and is not to be affected by plaintiff’s own circumstances. In other words, is it reasonably foreseeable that a person would walk on the roads of the mobile home park, where there are no sidewalks, and trip over raised jagged edges caused by a sunken manhole. And contrary to City’s argument that there “were no leaves, debris, water or other objects which obstructed Samayoa’s view of the manhole cover...” (Oppos., 6:15-16), a dangerous condition does not become trivial because there were no leaves or debris obstructing the view of the sunken manhole cover. A dangerous condition exists where it is reasonably foreseeable that there is any person who, while using the property with due care, would suffer injury - whether the plaintiff knew of the dangerous condition or not. Fredette at 131. The matter before us is more similar to the case of Face v. Sarkis, 201 Cal.App.2d 45, 19 Cal.Rptr. 856 (1962). In the Face matter, plaintiff was injured while driving down a private road that defendant maintained. Plaintiff drove his truck into ruts in the middle of the road causing injury. The court ruled that defendant’s allegation that plaintiff was contributory negligent because the condition was obvious to plaintiff was a factual question for the jury to determine. Face at 51. The same line of reasoning applies here making summary judgment improper.

2. City Created Dangerous Condition

In its motion for summary judgment, Defendant City claims that the “City did not create the subject condition.” (Oppos., 6:25-26) The evidence contradicts the City’s assertion. Under California Government Code § 835(a), a public entity is liable for injury caused by a dangerous condition of its property if the dangerous condition was created by a negligent act or omission of an employee of the public entity within the scope of his employment. Plaintiff asserts that there are material issues of fact establishing subsection (a) above. For instance, the evidence shows that the sunken manhole cover and the raised jagged edges of the asphalt pavement around the parameter of the manhole cover was caused by either 1) City’s negligence in originally positioning the manhole cover too low in the street or 2) the City’s omission to raise the manhole cover at the time the road was re-asphalted. As shown on page two of Exhibit 1, the City has recently corrected the dangerous condition by raising the manhole cover to the level of the street. (See Declaration of Plaintiff, ¶ 5) In the declaration of Chris Dzwigalski, in support of City’s motion for summary judgment, Chris Dzwigalski states “the part of [the street] where the manhole cover is located is a private street over which the City exercises no general maintenance responsibilities.” (See ¶ 3) But Chris Dzwigalski’s testimony is contradicted by Cross-defendant Caritas Affordable Housing, Inc’s responses to City’s Special Interrogatories. (A true and correct copy of Responses to Special Interrogatories are attached as Exhibit 2) Specifically, Caritas Affordable Housing, Inc. (“Caritas”) states in its responses that “City of Vista maintains the manhole



cover and has effectuated repairs to the area immediately surrounding the manhole to address subsidence.” (Exhibit 2, Response No. 1) Caritas states in its response that it “is unclear whether the roadway [where incident occurred] is privately owned as the property in question may or may not be partially owned by [City of Vistal.” (Exhibit 2, Response No. 2) Caritas states that the City of Vista has performed work on the roadway at or near the location of plaintiff’s alleged fall within 10 years prior to the incident. Caritas also states that no asphalt work was performed by Caritas. (Exhibit 2, Response No. 3) As shown through the responses of Cross-defendant Caritas, Caritas did not re-asphalt the road where the incident occurred and the City is the one who has performed work for subsidence (e.g, settling or subsiding) on the roadway at or near the incident prior to the incident. This evidence shows that either the City’s employees negligently positioned the manhole cover too low when it was originally installed the manhole cover or the City’s employees omitted to raise the manhole cover when the City re-asphalted the roadway. In either event, there is a material issue of fact as to whether the City created the dangerous condition. Therefore, summary judgment is not appropriate in this case.

4. Notice

In their motion for summary judgment, Defendant City asserts the City did not have notice of the alleged dangerous condition a sufficient time before her fall to have taken remedial measures. (Government Code § 835(b)) (Oppos., 7:1-6) When proving notice, Plaintiff must prove that Defendant City had notice of the dangerous condition before the incident occurred. To prove that there was notice, Plaintiff must prove that Defendant City knew of the condition and knew or should have known that it was dangerous. A public entity knows of a dangerous condition if an employee knows of the condition and reasonably should have informed the entity about it, or that the condition had existed for enough time before the incident and was so obvious that the defendant reasonably should have discovered the condition and known it was dangerous. Cal Gov Code §835.2; CACI 1103. In this case, Plaintiff has already shown that the City’s employees had notice of the dangerous condition because the City’s employees created it. Under Government Code § 835, a party need only prove that the defendant created the dangerous condition. It is not necessary that a party also prove that the defendant’s employees had notice of the dangerous condition. Nevertheless, Plaintiff will respond to the City’s notice argument.

a) Actual Notice

Defendant City cites Briggs v. State, 14 Cal. App. 3d 489 (1971), State of California v. Superior Court (Rodenhuis), 263 Cal. App. 2d 396 (1968), and Van Kempen v. Hayward Area Park. Recreation and Park Dist., 23 Cal. App. 3d 822 (1972), among other cases, to argue that Defendant City did not have actual notice. In Briggs, the court ruled in favor of plaintiff, opining the public entity did have notice. In State of California, the plaintiff sat in the remains of a fire at the beach. The hot coals were underneath the sand and not apparent or obvious. A ranger had cleaned the area the day before and had not seen any fire remains. The court opined the state had no actual knowledge of the embers and lacked constructive knowledge because there was no proof that the dangerous condition existed long enough to allow the state to fix it. In Van Kempen, the court ruled the public entity did not have actual notice of the condition prior to the injury to plaintiff. The facts showed that defendant knew of a potentially dangerous condition and had taken precautionary steps to prevent injury. Sometime after that, a third party intervened and created a dangerous condition causing injury to plaintiff. The court stated, “the evidence is devoid that respondent had any notice either actual or constructive prior to the accident...” Van Kempen at 827. In the present case, as in the case of Brigs, there is ample evidence Defendant City had actual notice of the dangerous condition. Caritas has stated in its discovery responses that the City’s workers have been to the area where the incident occurred prior to Plaintiff’s accident. (Exhibit 2, Response No. 5). Additionally, Plaintiff’s photograph (Exhibit 1, p. 2)



shows the City repairing the dangerous condition by raising the manhole cover to the level of the roadway. This demonstrates that the City had control over the area. In Van Kampen, the court stated there was no evidence the defendant public entity had actual or constructive notice of the condition prior to the injury. That is not the case in this matter. Here, the city workers had been in the area prior to the incident, installing and maintaining the sewage system and the surrounding roadway prior to the incident. (See Exhibit 2)

b) Constructive Notice

Defendant cites Strongman v. County of Kern (1967) 255 Cal. App. 2d 308, and State of California, supra, to assert Defendant City did not have constructive notice. In Strongman, the court granted a non-suit because plaintiff failed to show the condition causing plaintiff’s injuries existed for any length of time prior to the accident. Strongman, at 314. In that matter, there was no evidence that the condition existed prior to the moment the accident occurred, and no one testified the condition had existed prior to the injury. The only testimony on that issue was the plaintiff’s husband testifying that from his observation at the time immediately following the accident, he believed the dangerous condition had existed for some period of time prior to the incident causing injury to plaintiff. This is in stark contrast to the present matter, where, just upon viewing the photos, it does not seem possible that Plaintiff, at the time of her fall, caused the manhole cover to subside and the asphalt to rise up. The present matter is similar to the case of Straughter v. The State of California, 89 Cal App 3d 102 (1976). In that case, the Court found in favor of plaintiff holding that a reasonable inspection by highway employees would have discovered the icy road conditions, and, therefore, appellant had constructive notice of a dangerous condition. The Court stated the ice on the road could have been disclosed by a quick glance given the inspection procedures or at least should have been anticipated under the conditions. “Constructive notice may be found where the dangerous condition would have been discovered by a reasonable inspection.” Straughter at 109. As in the cases of Straughter and Briggs, the City in the present matter had constructive knowledge. Plaintiff stated the dangerous condition existed at the time of her fall (Declar. of Plaintiff), and Cross-defendant Caritas stated in its discovery responses that it has seen city workers maintaining the area prior to Plaintiff’s incident (Exhibit 2). The photographs show a condition that has existed for some period of time (Exhibits 1). Therefore, if the City did not know of the dangerous condition, it should have known.

B. PLAINTIFF HAS PRODUCED THE QUANTUM OF EVIDENCE NECESSARY TO OVERCOME SUMMARY JUDGMENT

Where there is doubt whether a motion for summary judgment should be granted, it should be denied. Gibson v De La Salle Institute (1944) 66 Cal App 2d 609, 152 P2d 774. If the court finds a triable issue, on motion for summary judgment, it is powerless to continue and must allow the issue to be tried by a jury. Enos v Foster (1957, 1st Dist) 155 Cal App 2d 152, 317 P2d 670.

IV. CONCLUSION

The evidence presented by Plaintiff raises a triable issue for the jury, and therefore, Plaintiff requests the court deny Defendant City’s motion for summary judgment. Dated: November 26, 2012 LAW OFFICES OF ROBERT P. FINN



<<signature>> ROBERT P. FINN Attorney for Plaintiff, EMMA SAMAYOA

DECLARATION OF EMMA SAMAYOA

I, Emma Samayoa, declare: 1. I am the plaintiff in the case and have personal knowledge of the following facts. If called upon to testify, I could and would do so competently. 2. On November 13, 2010, around 5:00 to 5:30 p.m., when there was still some sunlight, my husband and I left our home and were walking down the street in our mobile home park to go to a barber shop just outside the park. We were walking in the street because our mobile home park does not have sidewalks. I was walking normally across the street, talking with my husband as we walked, not specifically looking at the ground, when I suddenly tripped and fell in an area of the street where the City’s manhole cover was sunken below the grade of the asphalt pavement. I was wearing tennis shoes and my foot tripped on a raised jagged uneven edge of asphalt that was on the edge of the manhole cover. A true and correct copy of the manhole cover is attached as Exhibit 1, p. 1. 3. The height of the raised asphalt edge around the manhole cover where I tripped was one and a half inches high and was approximately two to three feet in diameter. 4. The street where my husband and I were walking to leave the mobile home park on foot was the only means of exiting the mobile home park on foot from my home. 5. After my accident, workers from the City of Vista came and repaired the area where I tripped by raising the manhole cover to the level of the street. A true and correct photo of the City of Vista repairing the manhole cover and the repaired area is attached as Exhibit 1, p. 2. I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. Executed on this 20 day of November 2012. <<signature>> Emma Samayoa

End of Document


Emma SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 through 25, inclusive, Defe...


Filings (9)


1. Cross-Complaint of Defendant/Cross-Complainant City of Vista for Indemnity Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 to 25, inclusive, Defendants; City of Vista, Cross-complainant, v. Caritas Affordable Housing, Inc. and Roes 1-20, Cross-defendants. 2012 WL 9297757

Cal.Super. Apr. 2, 2012 Pleading

2. Complaint-Personal Injury, Property Damage, Wrongful Death Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 to 25, inclusive, Defendant. 2011 WL 11018893

Cal.Super. Nov. 21, 2011 Pleading

3. Cross-Defendant Caritas Affordable Housing Inc.’s Opposition to Plaintiff’s Motion for Leave to File First Amended Complaint and Memorandum of Points and Authorities Ema SAMAYOA, Plaintiff, v. CITY OF VISTA and Does 1 - 25, inclusive, Defendants; City of Vista, Cross-Complainant, v. Caritas Affordable Housing, Inc. and Roes through 20, inclusive, Cross-Defendants. 2013 WL 5563594

Cal.Super. Feb. 15, 2013 Motion

4. Plaintiff’s Motion to File First Amended Complaint against Caritas Affordable Housing, Inc.; Memorandum of Points and Authorities; Declaration of Robert P. Finn. Emma SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 through 25, inclusive, Defendants. 2013 WL 5563598


5. Notice of Motion and Motion for Summary Judgment by Defendant City of Vista; Memorandum of Points and Authorities in Support Thereof; Separate Statement of Undisputed Material Facts; Declarations of M Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 to 25, inclusive, Defendants. 2012 WL 9297754

Cal.Super. Sep. 25, 2012 Motion

6. Memorandum of Points and Authorities in Support of Defendant City of Vista’s Motion to Compel Responses by Plaintiff Ema Samayoa to Form Interrogatories (Set One) and Special Interrogatories (Sets One Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 to 25, inclusive, Defendants. 2012 WL 9297756

Cal.Super. Apr. 4, 2012 Motion

7. Defendant City of Vista’s Notice of Motion and Motion to Strike Portions of Plaintiff’s Complaint; Memorandum of Points and Authorities; Declaration of Lee H. Roistacher





Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 to 25, inclusive, Defendants. 2012 WL 9297742

8. Defendant City of Vista’s Notice of Demurrer and Demurrer to Plaintiff’s Complaint; Memorandum of Points and Authorities; Declaration of Lee H. Roistacher Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 to 25, inclusive, Defendants. 2012 WL 9297755







Direct History (1)


Related References (3) 2. Samayoa v. City of Vista 2013 WL 5590857 , Cal.Super. , Jan. 04, 2013






Title Court Date





Jim McFarland and Mechtech Motorsports, Inc.’s Opposition to Plaintiff’s Motion to Tax Costs THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:


THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v...., 2012 WL 7634651...



North County Regional Center. San Diego County

THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v.

MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants,

And All Related Cross-Actions.

No. 37-2011-00055785-CU-BC-NC. November 27, 2012.

Jim McFarland and Mechtech Motorsports, Inc.’s Opposition to Plaintiff’s Motion to Tax Costs

Kenneth N. Greenfield, Esq. (State Bar No. 105721), Alexandra N. Selfridge, Esq. (State Bar No. 247063), Law Offices of Kenneth N. Greenfield, 16516 Bernardo Center Drive, Suite 210, San Diego, CA 92128, (858) 675-0301, Fax (858) 675-0319, Attorneys for Defendants/Cross-Complainants/Cross-Defendants Jim McFarland and Mechtech Motorsports, Inc. and Cross-Defendant Jeanne McFarland.


Dept: N-28 Hearing Date Date: January 4, 2013 Time: 1:30 p.m. Dept.: N-28 Date Filed: June 28, 2011 Trial: October 29, 2012 Defendants/Cross-Complainants/Cross-Defendants Jim McFarland and MechTech Motorsports, Inc. (“Defendants”) hereby submit the following Opposition to Plaintiff The Wyne-Snow Industrial Park’s (“Plaintiff”) Motion to Tax Costs.

I. INTRODUCTION In light of Plaintiff’s relatively minor role in this litigation, Defendants only claim $4,770.50 in costs. Defendants’ claimed costs are all reasonably necessary, not only to the conduct of the litigation, but also to those aspects of the litigation which directly involved Plaintiff. As such, Defendants respectfully request that this Court deny Plaintiff’s Motion to Tax Costs in its entirety.

II. STATEMENT OF FACTS



In 2010, MechTech Motorsports, Inc. had owned a high performance automotive business known as MechTech Motorsports (“the Business”) for approximately 26 years. MechTech Motorsports was located at 1277 and 1279 Simpson Way, Escondido, California 92029, in a multi-tenant industrial park (“the Subject Property”). MechTech Motorsports, Inc. and its CEO, Jim McFarland, leased the Subject Property from The Wyne-Snow Industrial Park. In July 2010, MechTech Motorsports, Inc. sold the Business to William Dunivan. By way of the Agreement, Mr. Dunivan expressly agreed to indemnify MechTech Motorsports, Inc. in connection with any claims arising from or growing out of Mr. Dunivan’s operation and ownership of the Business from the closing date forward into the future. In addition, Mr. McFarland and MechTech Motorsports, Inc. assigned their interest in the Lease to Mr. Dunivan and his Limited Liability Company, All Mechtech, LLC. Although the buyers assumed the Lease, Plaintiff did not expressly release Mr. McFarland and MechTech Motorsports, Inc. from their obligations under the Lease by Plaintiff. In January 2011, Mr. Dunivan and All Mechtech, LLC abandoned possession of the Subject Property and failed and refused to pay rent to Plaintiff. Thereafter, Plaintiff filed a lawsuit against Mr. McFarland, MechTech Motorsports, Inc., Mr. Dunivan, and All Mechtech, LLC for Breach of Written Lease and Breach of Written Guaranty of Lease. In response, Mr. McFarland and MechTech Motorsports, Inc. filed an Answer. They pleaded the following affirmative defenses:

Second Affirmative Defense

These responding Defendants are informed and believe and thereon allege that, without admitting and, in fact, expressly denying liability, if these responding Defendants are subjected to any liability to the Plaintiff herein, it will be due in whole or in part to the acts and/or omissions of the other Defendants in this case, and any recovery obtained by said Plaintiff should be barred or reduced according to law, up to and including the whole thereof. (Defendants’ Answer to Plaintiffs Complaint, p. 2.)

Fourth Affirmative Defense

These responding Defendants are informed and believe and thereon allege, as to each and every cause of action, that they are entitled to full and complete indemnification from and against all parties, persons or entities, whose acts and/or omissions directly or proximately caused or contributed to the incident and damages alleged in Plaintiff’s Complaint or to the injuries and damages allegedly sustained by Plaintiff, if any, either as alleged in the Complaint or at all. (Answer, p. 2.)

Fifth Affirmative Defense

These responding Defendants are informed and believe and thereon allege that, if Plaintiff suffered or sustained any loss, damage, or injury as alleged in the Complaint, such loss, damage, or injury was proximately caused or contributed to by persons or entities other than these responding Defendants, and that the liability of all Defendants and responsible parties, named or unnamed in this lawsuit, should be apportioned to their relative degrees of fault, and the liability of these responding Defendants, if any, should thereby be reduced accordingly. (Answer, p. 3.)

Sixth Affirmative Defense

These responding Defendants are informed and believe and thereon allege, as to each and every cause of action, that they are entitled to indemnification by apportionment from and against all parties, persons or entities, whose acts or omissions directly or proximately caused or contributed to the incident and damages alleged in Plaintiff’s Complaint or to the injuries and damages allegedly sustained by Plaintiff, if any, either as alleged in the Complaint or at all. (Answer, p. 3.) In addition, Mr. McFarland and MechTech Motorsports, Inc. filed a Cross-Complaint against Mr. Dunivan and All Mechtech,



LLC, who in turn, filed a Cross-Complaint against Mr. and Mrs. McFarland and MechTech Motorsports, Inc. Mr. Dunivan and All Mechtech, LLC settled with Plaintiff for $50,000. On or about September 25, 2012, only one month before trial in this matter was set to begin, Plaintiff dismissed its lawsuit against Mr. McFarland and MechTech Motorsports, Inc. without prejudice. All of Defendants’ claimed costs were incurred before September 25, 2012.

III. STATEMENT OF LAW

Code of Civil Procedure section 1033.5 sets forth a list of costs which are and are not allowable to a prevailing party, while stating that costs which are not specifically mentioned are allowable at the discretion of the Court. All allowable costs must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “shall be reasonable in amount.” (Code Civ. Proc., § 1033.5.)

IV. ARGUMENT

A. Defendants’ Claimed Costs Relate Specifically to their Dispute with Plaintiff.

As affirmative defenses to Plaintiff’s lawsuit, Defendants asserted, in part: (1) Plaintiffs harm was actually caused by Mr. Dunivan and All Mechtech, LLC; (2) Defendants were entitled to indemnity from Mr. Dunivan and All Mechtech, LLC; and (3) Defendants’ liability should be apportioned by their relative degrees of fault, as compared to the fault of Mr. Dunivan and All Mechtech, LLC. (Answer, pp. 2-3.) While many of these allegations were also asserted in Defendants’ Cross-Complaint against Mr. Dunivan and All Mechtech, LLC, they remained essential defenses to Plaintiff’s lawsuit. It is apparently Plaintiff’s position that it has no responsibility for any litigation costs that relate to the dispute between Defendants and Mr. Dunivan and All Mechtech, LLC. This cannot be true, as Defendants’ core defenses to Plaintiff’s lawsuit directly involved Mr. Dunivan and All Mechtech, LLC. Of course Plaintiff is responsible for those costs. “ ‘Prevailing party’ includes... a defendant in whose favor a dismissal is entered,... and a defendant as against those plaintiff’s who do not recover any relief against that defendant.” (Code Civ. Proc., § 1032, subd. (a)(4).) There exists no requirement that the dismissal be with prejudice. Defendants are the prevailing parties, and are entitled to their reasonable litigation costs. The fact that Defendants also have the option of seeking these costs from Mr. Dunivan and All Mechtech, LLC does not mean that Defendants may not seek them from Plaintiff.

B. Defendants’ Claimed Filing Fees Are Recoverable.

Defendants filed a Motion to Compel Arbitration in this case, which Plaintiff opposed. The Motion related to the entire action, as Defendants requested that the entire action proceed to arbitration. The $40 filing fee was reasonably necessary to this litigation. Plaintiff’s Motion to Tax this cost should be denied.

C. Defendants’ Deposition Costs Are Recoverable

The depositions of Mr. Dunivan (Vol. 1A), Mr. Dunivan (Vol. 2), and Don DiSpaltro were essential to prove Defendants’ affirmative defenses to Plaintiff’s Complaint. By gathering facts showing a breach of contract by Mr. Dunivan and All Mechtech, LLC, Defendants were also conducting discovery in support of their claims that Mr. Dunivan and All Mechtech, LLC were really the parties who caused Plaintiff’s harm, and that Defendants were entitled to indemnity from Mr. Dunivan



and All Mechtech, LLC. Because the above-referenced deposition costs were appropriate and necessary, Plaintiffs’ Motion to Tax those costs should be denied.

D. Defendants’ Claimed Witness Fee Is Recoverable.

For the reasons set forth above, Don DiSpaltro’s deposition was crucial to establish Defendant’s defenses against Plaintiff’s lawsuit. As such, his witness fee was reasonable. For the foregoing reasons, Defendants should be awarded their claimed ordinary witness fee.

E. Defendants’ “Other” Claimed Costs Are Recoverable.

Defendants’ claimed costs for attorney filing service fees and fee advance charges are not specifically excluded by Code of Civil Procedure section 1033.5. They were reasonbly necessary to the defense of this case, and this Court may award said costs in its discretion.

V. CONCLUSION

For the foregoing reasons, Defendants respectfully request that this Court deny Plaintiffs Motion to Tax Costs in its entirety. DATED: November 26, 2012 LAW OFFICES OF KENNETH N. GREENFIELD By: <<signature>> KENNETH N. GREENFIELD, ALEXANDRA N. SELFRIDGE Attorneys for Defendants/Cross-Complainants/Cross-Defendants, JIM McFARLAND and MECHTECH MOTORSPORTS, INC. and Cross-Defendant JEANNE McFARLAND

End of Document


THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC...


Filings (26)


1. Second Amended Cross-Complaint for: 1. Express Indemnity 2. Implied Contractual Indemnity 3. Declaratory Relief 4. Breach of Contract 5. Breach of Promissory Note 6. Breach of Assignment of Lease 7. F THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants; MechTech Motorsports, Inc.; and Jim McFarland, an individual, Cross-Complainats, v. All Mechtech, 2012 WL 7634654

Cal.Super. Jun. 30, 2012 Pleading

2. Complaint for Damages 1. Breach of Written Lease 2. Breach of Written Guaranty of Lease 3. Breach of Written Guaranty of Lease THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS., INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants. 2011 WL 10467939


3. Notice of Motion and Motion for Order Taxing Costs THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634653

Cal.Super. Oct. 31, 2012 Motion

4. William R. Dunivan and all Mechtech, LLC’s Opposition to Motion in Limine to Exclude Evidence Regarding Alleged Violations of the Tax Code, Catalytic Converter Laws, Laws Governing the Installation of THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; all Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634647


5. William R. Dunivan and all Mechtech, LLC’s Opposition to Motion in Limine to Exclude Expert Testimony by Tony Yip Regarding the Moving Parties’ “Alter Ego” Allegations (3 of 4) THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; all Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions.





2012 WL 7634649

6. Jim McFarland, Mechtech Motorsports, Inc., and Jeanne McFarland’s Motion in Limine to Exclude Expert Testimony by Tony Yip Regarding the Moving Parties; “Alter Ego” Allegations THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634629


7. Jim McFarland, Mechtech Motorsports, Inc., and Jeanne McFarland’s Motion in Limine to Exclude Evidence of or Reference to the Moving Parties’ Alleged Violations of the Tax Code, Catalytic Converter La THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634642


8. Cross-Complainants Jim McFarland and Mechtech Motorsports, Inc.’s Opposition to Cross-Defendants all Mechtech, LLC and William R. Dunivan’s Demurrer to Second Amended Cross-Complaint THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, a individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634640

Cal.Super. Mar. 5, 2012 Motion

9. Cross-Complainants Jim McFarland and Mechtech Motorsports, Inc.’s Opposition to Cross-Defendants all Mechtech, LLC and William R. Dunivan’s Motion to Strike Portions of Second Amended Cross-Complaint THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtrech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634643


10. Defendant/Cross Complainant William R. Dunivan and All Mechtech, LLC’S Notice of Motion to Strike Portion of Second Amended Cross-Complaint; Memorandum of Points and Authorities in Support Thereof THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS INC.; Jim McFarland, an individual All Mechtech LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions.





2012 WL 7634645

11. Defendant/Cross-Complainant/Cross-Defendant William R. Dunivan and All Mechteche, LLC’S Demurer and Memorandum of Points and Authorities in SupportTHE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634646


12. Memorandum of Points and Authorities in Support of Cross-Defendants’ Demurrer to Cross-Complaint THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.: Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634639


13. Opposition to Motion for an Order Compelling Arbitration, Appointing a Neutral Arbitrator, and Staying Proceedings; Memorandum of Points and Authorities in Support THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2011 WL 10467941


14. Notice of Motion and Motion for an Order Compelling Arbitration, Appointing A Neutral Arbitrator, and Staying Proceedings; Memorandum of Points and Authorities in Support Thereof THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2011 WL 10467942


15. Jim McFarland, Mechtech Motorsports, Inc., and Jeanne McFarland’s Trial Brief THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634632

Cal.Super. Sep. 28, 2012 Filing

16. Plaintiff’s Settlement Conference Statement THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an

Cal.Super. Feb. 21, 2012 Filing




individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634650

17. Defendant/Cross-Complainant/Cross-defendant William R. Dunivan and All Mechtech, LLC’s Mandatory Settlement Conference Statement THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634652


18. Settlement Conference Statement THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634648


19. Deposition of Tony Yip San Diego, California THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; all Mechtech, LLC; William R. Dunivan, an individual; and Does through 20, inclusive, Defendants. and All Related Cross-actions. 2012 WL 8261743

Cal.Super. Oct. 1, 2012 Expert Materials

20. 2012 WL 7856193, 14 Trials Digest 16th 6 Wyne-Snow Industrial Park vs. MechTech Motorsports Inc.


21. Verdict Form THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants; And All Related Cross-Actions. 2012 WL 7634320

Cal.Super. Nov. 9, 2012 Jury Verdict

22. Docket 37-2011-00055785-CU-BC-NC THE WYNE-SNOW INDUSTRIAL PARK v. MECHTECH MOTORSPORTS, INC

— Cal.Super. Jun. 28, 2011 Docket




Cal.Super. Oct. 1, 2012 Expert Court Document

25. Expert Resume of Tony Yip Tony Yip, C.P.A. 2012 WL 7985707






Cal.Super. Oct. 1, 2012 Expert Resume




Direct History (1)

1. The Wyne-Snow Indus. Park v. Mechtech Motorsports, Inc. 2013 WL 861517 , Cal.Super. , Jan. 04, 2013

Related References (5) 2. The Wyne-Snow Indus. Park v. Mectech Motorsports, Inc. 2012 WL 7659226 , Cal.Super. , Jan. 20, 2012

3. The Wyne-Snow Indus. Park v. Mechtech Motorsports, Inc. 2012 WL 7659206 , Cal.Super. , Mar. 16, 2012

4. The Wyne-Snow Indus. Park v. Mechtech Motorsports, Inc. 2012 WL 7659231 , Cal.Super. , Nov. 15, 2012

5. The Wyne-Snow Indus. Park v. Mechtech Motorsports, Inc. 2012 WL 7659209 , Cal.Super. , Dec. 17, 2012

6. The Wyne-Snow Indus. Park v. MechTech Motorsports, Inc. 2012 WL 7659202 , Cal.Super. , Dec. 27, 2012




Title Court Date

1. The Wyne-Snow Indus. Park v. Mechtech Motorsports, Inc. 2013 WL 861517

DATE: 01/04/2013 TIME: 1:30:00 PM DEPT: N-28 JUDICIAL OFFICER PRESIDING: Earl H. Maas, II CLERK: Noreen McKinley REPORTER/ERM: BAILIFF/COURT ATTENDANT: CASE INIT.DATE: 06/28/2011...


2. The Wyne-Snow Indus. Park v. MechTech Motorsports, Inc. 2012 WL 7659202

DATE: 11127/2012 TIME: 10:25:00 AM DEPT: N-28 JUDICIAL OFFICER PRESIDING: Earl H. Maas, III CLERK: Noreen McKinley REPORTER/ERM: Not Reported BAILIFF/COURT ATTENDANT: CASE...



Dept: N-28 This action came on regularly for trial by jury on October 29, 2012, in Department N-28 of the above-entitled court, the Honorable Earl H. Maas, III, presiding, with...



TO ALL PARTIES BY AND THROUGH THEIR ATTORNEYS OF RECORD: THE MOTION FOR SUMMARY ADJUDICATION of Defendants /Cross Defendants WILLIAM R. DUNIVAN and ALL MECHTECH, LLC, came on for...

Cal.Super. Nov. 15, 2012


[XI Amended on 03/16/2012 DATE: 03/16/2012 TIME: 01:30:00 PM DEPT: N-28 JUDICIAL OFFICER PRESIDING. Earl H. Maas, III CLERK: Noreen McKinley REPORTER/ERM: SueAnn Toney CSR# 10092...


6. The Wyne-Snow Indus. Park v. Mectech Motorsports, Inc. 2012 WL 7659226

DATE: 01120/2012 TIME: 01:30:00 PM DEPT: N-28 JUDICIAL OFFICER PRESIDING: Earl H. Maas Ill CLERK: Noreen McKinley REPORTER/ERM: SueAnn Toney CSR# 10092 BAILIFF/COURT ATTENDANT;...



Plaintiff’s Motion to Exlude Expert Testimony for Defendants’ Unreasonable Failure to Comply With Exchange Rules (CCP § 2034.300);) Declaration of H. Gavin Long Proposed Order Hillary OLDHAM; Matthew Jensen, Plaintiffs, v. Jonathan COBURN; Dawn Lacross; and Does 1 through 50, Defendants. | Superior Court of California. Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:


Hillary OLDHAM; Matthew Jensen, Plaintiffs, v. Jonathan..., 2012 WL 7658464...


2012 WL 7658464 (Cal.Super.) (Trial Motion, Memorandum and Affidavit) Superior Court of California.

San Diego County

Hillary OLDHAM; Matthew Jensen, Plaintiffs, v.

Jonathan COBURN; Dawn Lacross; and Does 1 through 50, Defendants.

No. 37-2011-00054633. November 21, 2012.

Plaintiff’s Motion to Exlude Expert Testimony for Defendants’ Unreasonable Failure to Comply With Exchange Rules (CCP § 2034.300);) Declaration of H. Gavin Long Proposed Order

Bisnar | Chase, One Newport Place, 1301 Dove Street, Suite 120, Newport Beach, CA 92660, Phone: (949) 752-2999, Facsimile: (949) 752-2777, Brian D. Chase, State Bar No. 164109, H. Gavin Long, State Bar No. 204034, Attorneys for Plaintiff Matthew Jensen.

Judge: Hon. Earl H. Maas III.

Dept.: NC-28 File Date: May 24, 2011 Trial Date: November 16, 2012 TO THE DEFENDANTS AND THEIR ATTORNEYS OF RECORD: Pursuant to Cal. Code Civ. Proc. § 2034.300, et seq., Plaintiff, MATTHEW JESEN (hereinafter “Plaintiff”), hereby moves to exclude defendants’ medical expert, Richard Greenfield, MD from testifying at trial, for defendants’ failure to comply with expert witness exchange rules. On November 16th, 2012, the parties appeared for trial and the court ordered that the parties were “on-call” with 24 hours’ notice to start trial. As such, this motion will be heard at the date and time the parties are called by the court to appear to start trial. This motion will be based on this notice, the attached memorandum of points and authorities, the declaration of H. Gavin Long with supporting exhibits, proposed order and the records and pleadings currently on file herein. DATE: November 21st, 2012 BISSNAR | CHASE By: <<signature>> H. GAVIN LONG, Esq. Attorneys for Plaintiff MATTHEW JENSEN



I. INTRODUCTION On September 13th, 2012, the parties timely exchanged expert witness information pursuant to CCP § 2034. On September 18th, 2012, defendants noticed the depositions for both of plaintiff’s expert witnesses. Defendants took Dr. Backman’s deposition on October 11th, 2012 and Dr. Nagelberg’s deposition on November 1st, 2012. On September 25th, 2012, plaintiff served by way of personal service Notice of Depositions for Defendants’ Expert Witnesses and Request for Production of Documents. The depositions were noticed for October 8th, 2012. In response, plaintiff was given a deposition date and time of November 5th, 2012, 5:30pm. This was the last day before the November 6th, 2012 expert discovery cut-off date. Plaintiff needed to have the deposition rescheduled. On November 6th, 2012, plaintiff counsel emailed defense counsel advising that Dr. Greenfield’s deposition needed to be rescheduled regardless of whether the parties proceeded with a resolution by trial or arbitration. In response, on November 8th, 2012, plaintiff’s counsel was advised by defense counsel that Dr. Greenfield would be on vacation from November 19th, 2012 through November 27th, 2012 and the Dr. Greenfield would possibly be available on December 11th, 2012. On November 12th, 2012, plaintiff’s counsel received a voicemail from defense counsel advising that he would allow plaintiff’s counsel to take Dr. Greenfield’s deposition “some time before he testifies.” On November 12th, 2012, plaintiff’s counsel emailed defense counsel advising that merely making his expert available “some time before he testifies” was unacceptable, and plaintiff’s worked hard so defendants could take both of his retained expert’s depositions well before trial. Plaintiff’s counsel also reiterated that he was clear with defendants’ counsel that he needed to take defendants expert’s deposition regardless of whether the parties went to binding arbitration or not. Plaintiff’s counsel requested that defense counsel give him some deposition dates before Dr. Greenfield was allegedly leaving on vacation on November 19th, 2012 and returning on November 27th, 2012. In response, on November 12th, 2012, defense counsel emailed plaintiff’s counsel advising that “I will try.” On November 14th, 2012, this issue was brought to the court’s attention. The court advised defense counsel that merely making Dr. Greenfield some time before he testifies was insufficient. The court further advised that Dr. Greenfield needed to be deposed before the November 16th, 2012 trial date, possibly during the lunch hour on November 14th, 2012. On November 16th, 2012, both parties appeared at trial. Plaintiff’s counsel advised the court that he was not given any dates by the defendant to take Dr. Greenfield’s deposition before either the November 16th, 2012 trial date or November 19th, 2012, the date Dr. Greenfield was scheduled to leave for vacation. Instead, defendants’ gave plaintiff the date of November 26th, 2012. In response, the court advised that it would seriously entertain a motion to exclude Dr. Greenfield from testifying. Defense counsel objected based on the claim that he believed the deposition would not go forward because the parties were contemplating binding arbitration. Defendants were invited to raise that argument in opposition to plaintiff’s motion. In short, plaintiff complied with the exchange requirements. Defendant unreasonably failed to produce Dr. Greenfield within the expert discovery period. The correspondence between the parties is clear that plaintiff was making every effort to take Dr. Greenfield’s deposition regardless of whether the parties proceeded with binding arbitration or not. The defendants failed to follow the court’s “last straw” suggestion that they produce Dr. Greenfield for deposition before the November 16th, 2012 trial date, resulting in prejudice to plaintiff’s pre-trial preparation.



II. THE DISCOVERY ACT PROVIDES FOR EXCLUSION OF EXPERT TESTIMONY WHEN FAILURE TO COMPLY WITH THE EXPERT EXCHANGE INFORMATION REQUIREMENTS WAS UNREASONABLE

Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: (a) List that witness as an expert under Section 2034.260. (b) Submit an expert witness declaration. (c) Produce reports and writings of expert witnesses under Section 2034.270. (d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410). The Discovery Act provides for the exclusion of expert witness testimony when the failure to comply with expert exchange information requirement was unreasonable, CCP § 2034.300, Plunkett v. Spaulding (1997) 52 Cal.App.4th 114. To invoke the exclusion requirement, two requirements must be met: 1. A formal objection must be made to the opposing expert’s testimony. The objection may be raised by way of motion in limine or when the expert takes the stand, Richaud v. Jennings (1993) 16 Cal.App.4th 81; and, 2. The objecting party must have complied with the exchange requirements, Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755. Here, plaintiff is making the objection before Dr. Greenfield’s anticipated testimony. As discussed above, plaintiff complied with the exchange requirements. Plaintiff’s experts were deposed well before expert discovery cut-off. On September 25th, 2012, Plaintiff timely served a deposition notice for Dr. Greenfield’s deposition to proceed on October 8th, 2012. Plaintiff was given November 5th, 2012 to take Dr. Greenfield’s deposition, which was the last day before expert discovery cut-off. Plaintiff needed to reschedule Dr. Greenfield’s deposition. Thereafter, as outlined above and in the declaration on plaintiff’s counsel, a series of phone messages and emails were exchanged between the parties in which plaintiff was attempting to secure a firm and reasonable date to take Dr. Greenfield’s deposition. On November 14th, 2012, after expert discovery was cut-off, the court gave defendant the opportunity to allow plaintiff to take Dr. Greenfield’s deposition before he left for vacation on November 19th, 2012. In the end, defendants gave plaintiff deposition dates well after the November 16th, 2012 trial date and Dr. Greenfield’s departure date of November 19th, 2012: December 11th, 2012, then November 26th, 2012. The court has discretion to overlook excusable delays or trivial defects in document exchanges. (Weil & Brown, Cal Prac Guide: Civil Procedure Before Trial (TRG 2011) 8:1719.2; Brown v. Penny Lane Centers, Inc., (2009) 170 Cal.App.4th 936. Here, defendant claimed at the November 14th, 2012 hearing that the reason for the delay in setting the deposition was because the parties were contemplating binding arbitration. The emails attached to plaintiff counsel’s declaration show that plaintiff’s fully intended on taking Dr. Greenfield’s deposition regardless of whether or not the parties resolved this case through binding arbitration or trial.

III. CONCLUSION



Plaintiff stands on his objection to Dr. Greenfield testifying at trial. Plaintiff was provided with deposition dates well after expert discovery cut-off and well after the court’s recommendation to have Dr. Greenfield’s deposition taken before the actual trial date. Plaintiff has complied with both exclusion requirements under CCP § 2034.300. Finally, there is no “excusable delay” or a “trivial defect in document exchanges” as plaintiff’s fully intended on taking Dr. Greenfield’s deposition regardless of whether or not the parties resolved this case through binding arbitration or trial. As such, plaintiff requests that Dr. Greenfield be excluded from testifying at trial. DATE: November 21st, 2012 BISN AR | CHASE By: <<signature>> H. GAVIN LONG, Esq. Attorneys for Plaintiff

DECLARATION OF H. GAVIN LONG

I, H. Gavin Long, do hereby declare as follows: I am an attorney duly licensed to practice before all Courts of the State of California and am employed as an attorney with the firm of Bisnar |Chase, counsel of record for Plaintiff MATTHEW JENSEN (hereinafter “Plaintiff”), in the instant action. 1. On September 13th, 2012, the parties timely exchanged expert witness information pursuant to CCP § 2034. 2. On September 18th, 2012, defendants noticed the depositions for both of plaintiff’s expert witnesses. Defendants took Dr. Backman’s deposition on October 11th, 2012 and Dr. Nagelberg’s deposition on November 1st, 2012. 3. On September 25th, 2012, plaintiff served by way of personal service Notice of Depositions for Defendant’s Expert Witnesses and Request for Production of Documents. The depositions were noticed for October 8th, 2012. (Attached hereto as Exhibit “A” is a true and correct copy of Plaintiff Notice of Deposition of Defendant’s Expert Witnesses). 4. In response, plaintiff was given a deposition date and time of November 5th, 2012, 5:30pm. This was the last date before the November 6th, 2012 expert discovery cut-off date. Plaintiff needed to have the deposition rescheduled. 5. On November 6th, 2012, I emailed defense counsel advising that Dr. Greenfield’s deposition needed to be rescheduled regardless of whether the parties proceeded with a resolution by trial or arbitration.

End of Document


Hillary OLDHAM; Matthew Jensen, Plaintiffs, v. Jonathan COBURN; Dawn Lacross; an...


Filings (11)


1. Complaint for Personal Injuries Hilary OLDHAM, Matthew Jensen, Plaintiff, v. Jonnathan COBURN, Dawn Lacross, and Does (1-50) Inclusive, Defendants. 2011 WL 10482443

Cal.Super. May 24, 2011 Pleading

2. Plaintiffs’ Opposition to Defendants’ Motion to Strike Punitive Damages Hilary OLDHAM, Matthew Jensen, Plaintiff, v. Jonathan COBURN, Dawn Lacross, and Does (1-50) Inclusive, Defendants. 2011 WL 10482475


3. Notice of Motion and Motion to Strike Punitive Damage Allegations from Plaintiff’s Complaint; Memorandum of Points and Authorities; and, Declaration in Support Thereof Hilary OLDHAM, Matthew Jensen, Plaintiffs, v. Jonathan COBURN, Dawn Lacross, and Does (1-50) Inclusive, Defendants. 2011 WL 10482469








7. General Verdict Form Hilary OLDHAM, Matthew Jensen, Plaintiffs, v. Jonathan COBURN, Dawn Lacross, and Does (1-50) Inclusive, Defendants. 2012 WL 7658602

Cal.Super. Dec. 6, 2012 Jury Verdict

8. Docket 37-2011-00054633-CU-PA-NC HILARY OLDHAM v. JONATHAN COBURN

— Cal.Super. May 24, 2011 Docket










Direct History (1)


Related References (3) 2. Oldham v. Coburn 2012 WL 7659885 , Cal.Super. , Jan. 06, 2012






Title Court Date


Dept.: NC-28 File Date: May 24, 2011 Trial Date: December 3, 2012 The above-entitled case came on for contested trial on December 3, 2012, in Department NC-28 of the above-entitled...









TIME: 01:30:00 PM DEPT: N-28 CLERK: Lynn Arthur REPORTER/ERM: Not Reported BAILIFF/COURT ATTENDANT: C. Lauraitis CASE INIT.DATE: 05/24/2011 CASE CATEGORY: Civil - Unlimited CASE...



Verdict Form THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants; And All Related Cross-Actions. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:







MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants;


No. 37-2011-00055785-CU-BC-NC. November 9, 2012.

Verdict Form

Judge: Hon. Earl H. Maas, III.

Dept: N-28 We, the jury, answer the questions submitted to us as follows:

PART I-BREACH OF CONTRACT

1. Which of the following individuals or entities, if any, breached the agreement concerning the purchase of the Mechtech Motorsports business? a. William Dunivan “Yes” or “No” Yes b. All Mechtech, LLC: “Yes” or “No”: Yes c. MechTech Motorsports, Inc.: “Yes” or “No”: No d. Jim McFarland: “Yes” or “No”: No e. Jeanne McFarland: “Yes” or “No”: No If you answered “Yes,” to Question No. 1a., please proceed to Question No. 2. If you answered “Yes,” to Question No. 1.b., please proceed to Question No. 3. If you answered “Yes,” to Question No. 1.c., please proceed to Question No. 4. If you answered “Yes,” to Question No. 1.d, please proceed to Question No. 5. If you answered “Yes” to Question No. 1.e, please proceed to Question No. 6. If you answered “No,” to Question Nos. 1.a., 1.b., I.c., 1.d., and 1e, please proceed to Question No. 7.



2. What are MechTech Motorsports, Inc.’s damages as a result of William Dunivan’s breach of the contract? Amount: $152,450.46 3. What are MechTech Motorsports, Inc.’s damages as a result of All Mechtech, LLC’s breach of the contract? Amount: $152,450.46 4. What are the damages for MechTech Motorsports, Inc.’s breach of Contract? For Mr. Dunivan: Amount: $ _____ For All Mechtech, LLC: Amount: $ _____ 5. What are the damages for Mr. McFarland’s breach of Contract? For Mr. Dunivan: Amount: $ _____ For All Mechtech, LLC: Amount: $ _____ 6. What are the damages for Mrs. McFarland’s breach of Contract? For Mr. Dunivan: Amount: $ _____ For All Mechtech, LLC: Amount: $ _____ Please proceed to Question No. 7.

PART II-FRAUD

7. Which of the following individuals or entities, if any, committed fraud? a. William R. Dunivan: “Yes” or “No”:

no

b. All Mechtech, LLC: “Yes” or “No”:

no

c. MechTech Motorsports, Inc.: “Yes” or “No”:

no

d. Jim McFarland: “Yes” or “No”:

no

e. Jeanne McFarland: “Yes” or “No”:

no

If you answered “Yes,” to Question No. 7.a., please proceed to Question No. 8. If you answered “Yes,” to Question No. 7.b., please proceed to Question No. 9.



If you answered “Yes,” to Question No. 7.c., please proceed to Question No. 10. If you answered “Yes,” to Question No. 7.d, please proceed to Question No. I 1. If you answered “Yes,” to Question No. 7.e, please proceed to Question No. 12. If you answered “No,” to Question Nos. 7.a., 7.b., 7.c., 7.d., and 7.e., please proceed to Question No. 15. 8. What damages resulted from Mr. Dunivan’s fraud? a. For Mr. McFarland: Past economic loss: $ _____ Past noneconomic loss (physical pain/mental suffering): $ _____ b. For MechTech Motorsports, Inc.: Past economic loss: $ _____ 9. What damages resulted from All Mechtech, LLC’s fraud? a. For Mr. McFarland: Past economic loss: $ _____ Past noneconomic loss (physical pain/mental suffering): $ _____ b. For MechTech Motorsports, Inc.: Past economic loss: $ _____ 10. What damages resulted from MechTech Motorsports, Inc.’s fraud? a. For Mr. Dunivan: Past economic loss: $ _____ Past noneconomic loss (physical pain/mental suffering): $ _____ b. For All Mechtech, LLC: Past economic loss: $ _____ 11. What damages resulted from Mr. McFarland’s fraud? a. For Mr. Dunivan: Past economic loss: $ _____ Past noneconomic loss (physical pain/mental suffering): $ _____ b. For All Mechtech, LLC:



Past economic loss: $ _____ 12. What damages resulted from Mrs. McFarland’s fraud? a. For Mr. Dunivan: Past economic loss: $ _____ Past noneconomic loss (physical pain/mental suffering): $ _____ b. For All Mechtech, LLC: Past economic loss: $ _____ 13. Do you find by clear and convincing evidence that any of the following individuals or entities was guilty of oppression, fraud, or malice in the conduct upon which you base your finding of liability for fraud in Question No. 6, above? a. William R. Dunivan: “Yes” or “No”:

no

b. All Mechtech, LLC: “Yes” or “No”:

no

c. MechTech Motorsports, Inc.: “Yes” or “No”:

no

d. Jim McFarland: “Yes” or “No”:

no

e. Jeanne McFarland: “Yes” or “No”:

no

14. What amount of punitive damages, if any, should be awarded against the party or parties in paragraph 12, above, for whom you answered “yes”? Answer: __________________________________________________

PART III-NEGLIGENT MISREPRESENTATION

15. Which of the following individuals or entities, if any, committed a negligent misrepresentation? a. MechTech Motorsports, Inc.: “Yes” or “No”:

no

b. Jim McFarland: “Yes” or “No”:

no

c. Jeanne McFarland: “Yes” or “No”: no



If you answered “Yes,” to Question No. 15.a., please proceed to Question No. 16. If you answered “Yes,” to Question No. 16.b., please proceed to Question No. 17. If you answered “Yes,” to Question No. 17.c., please proceed to Question No. 18. 16. What damages resulted from MechTech Motorsports, Inc.’s negligent misrepresentation? a. For Mr. Dunivan: Past economic loss: $ _____ Past noneconomic loss (physical pain/mental suffering): $ _____ b. For All Mechtech, LLC: Past economic loss: $ _____ 17. What damages resulted from Mr. McFarland’s negligent misrepresentation? a. For Mr. Dunivan: Past economic loss: $ _____ Past noneconomic loss (physical pain/mental suffering): $ _____ b. For All Mechtech, LLC: Past economic loss: $ _____ 18. What damages resulted from Mrs. McFarland’s negligent misrepresentation? a. For Mr. Dunivan: Past economic loss: $ _____ Past noneconomic loss (physical pain/mental suffering): $ _____ b. For All Mechtech, LLC: Past economic loss: $ _____ Instructions: Please have the presiding juror sign and date this form and deliver it to the Court. DATED: 11/9/12 <<signature>> PRESIDING JUROR



End of Document




Filings (26)






3. Jim McFarland and Mechtech Motorsports, Inc.’s Opposition to Plaintiff’s Motion to Tax Costs THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634651









6. William R. Dunivan and all Mechtech, LLC’s Opposition to Motion in Limine to Exclude Expert Testimony by Tony Yip Regarding the Moving Parties’ “Alter Ego” Allegations (3 of 4) THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; all Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634649













11. Defendant/Cross Complainant William R. Dunivan and All Mechtech, LLC’S Notice of Motion to Strike Portion of Second Amended Cross-Complaint; Memorandum of Points and Authorities in Support Thereof THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS INC.; Jim McFarland, an individual All Mechtech LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634645










16. Jim McFarland, Mechtech Motorsports, Inc., and Jeanne McFarland’s Trial Brief THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v.





MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634632

17. Plaintiff’s Settlement Conference Statement THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634650
















25. Expert Resume of Tony Yip Cal.Super. Oct. 1, 2012 Expert Court




Tony Yip, C.P.A. 2012 WL 7985707

Document






Direct History (1)










Title Court Date




















William R. Dunivan and all Mechtech, LLC’s Opposition to Motion in Limine to Exclude Evidence Regarding Alleged Violations of the Tax Code, Catalytic Converter Laws, Laws Governing the Installation of Nitrous Oxide Kits, or Laws Governing the Sale of Racing Fuel (2 of 4) THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; all Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:







MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; all Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants,


No. 37-2011-00055785-CU-BC-NC. October 3, 2012.

William R. Dunivan and all Mechtech, LLC’s Opposition to Motion in Limine to Exclude Evidence Regarding Alleged Violations of the Tax Code, Catalytic Converter Laws, Laws Governing the Installation of Nitrous Oxide Kits, or

Laws Governing the Sale of Racing Fuel (2 of 4)

Cynthia L. Stratton, Esq. (Bar No. 185652), Stratton & Green, ALC, 8880 Rio San Diego Drive, Ste. 1000, San Diego, CA 92108, Tel: (619) 718-4820, Fax: (619) 718-4825, Attorneys for Defendants/Cross-Complainants all Mechtech and William R. Dunivan.


Dept.: N-28 Trial Date: October 29, 2012 Trial time estimate: 10 days Jury Requested: Yes Court Reporter Requested: Yes TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT Defendant/Cross-Complainants, William R. Dunivan (“hereinafter referred to as “Mr. Dunivan”) and All Mechtech, LLC (hereinafter referred to as “All Mechtech”), hereby submit the following Opposition to Cross-Complainants/Cross-Defendants’ Motion in Limine to exclude evidence regarding alleged violations of the tax code, catalytic converter laws, laws governing the installation of nitrous oxide kits, or laws governing the sale of racing fuel. This Opposition is based upon the grounds that Plaintiff improperly applies the governing laws of evidence of the state of California to this case, including, but not limited to Evidence Code Sections 1200 et seq. 801(b), and 352. Cross-Complainants/Cross-Defendants’ basis for this motion are that such matters are subject to expert testimony, are a question of law rather than fact, is impermissible evidence of the McFarlands’ prior bad acts and is unduly time consuming and prejudicial. These arguments remain without merit upon examination of the facts in this case and fails to provide a legal basis to exclude the evidence at issue.

I. FACTS RELATED THIS MOTION



Mr. Dunivan and All Mechtech will submit evidence that Jim McFarland, Jeanne McFarland and Mechtech Motorsports engaged in illegal activity for the benefit of its customers prior to the sale of the business. This evidence is directly related to the very heart of this matter. Indeed, if Mr. Dunivan knew of the illegal activities conducted by the Cross-Complainants/Cross-Defendants, Mr. Dunivan would never have purchased Mechtech Motorsports and thereby would not have suffered damages. Specifically, Tony Yip, Mr. Dunivan and All Mechtech’s expert witness, will testify that there are only two logical explanations for the marked and fast decline in business in the 2.5 months Mr. Dunivan and All Mechtech ran Mechtech Motorsports as opposed to the prior years’ sales. The first explanation is that there were illegal activities occurring in the business that affected revenues when Mr. Dunivan and All Mechtech refused to engage in similar illegal activities. The second possible explanation is that the financials provided to Mr. Dunivan (as well as both parties’ experts in this case) were falsified. (See, Excerpts from Deposition of Tony Yip, (Rough Draft) 29:19-31:12, attached hereto as Exhibit A.”) Either way, had Mr. Dunivan known the true facts regarding the status of Mechtech Motorsports, he would have never purchased the business and therefore would not have incurred damages. Moreover, Mr. Dunivan personally observed various illegal activities in ongoing projects. (See, Excerpts from Deposition of William R. Dunivan, Volume I, 235:17-241:10, attached hereto as “Exhibit B.”) Mr. McFarland admitted under oath to assisting his customers by falsifying invoices. (See, Excerpts from Deposition of Jim McFarland, 187:14-188:22, attached hereto as “Exhibit D.”) Moreover, Mr. McFarland specifically instructed Mr. Dunivan to violate the law. (See, Excerpts from Deposition of William R. Dunivan, Volume II, 165:13-166:5, attached hereto as “Exhibit C.”) In light of the illegal activity Mr. Dunivan and his employees personally observed at Mechtech Motorsports after the purchase, as well as statements made to them by various Mechtech Motorsports customers, Mr. Dunivan determined that the McFarlands lied to him regarding the business and closed Mechtech Motorsports after the McFarlands refused to accept a return of the business. Ultimately the jury has a right to determine whether Cross-Complainant/Cross-Defendants’ misled Mr. Dunivan and All Mechtech regarding the their business practices prior to the sale of Mechtech Motorsports, as well as whether the allegations of illegal actions affected the value of said business.

II. MEMORANDUM OF POINTS AND AUTHORITIES

A. Lay witnesses may testify regarding their percipient knowledge of Mechtech Motorsports illegal actions

First and foremost, Jim McFarland admitted to engaged in illegal practices while he ran Mechtech Motorsports by creating false invoices in order to defraud the IRS by falsely describing repairs performed on a recreational dune buggy as repairs for a work truck. Q. And that was a part that All American Plastic picked up and left MechTech with? A. Well, to answer that question, Norman, it was put under his business because it was a work truck. That’s what he wanted, it was under it So I don’t know, for his tax purposes -- I’m not sure why, but that’s what he asked us to put it under was All American Plastics slash his name. So we would do performance work - work on his vehicles, like this one on the truck, and then there were a bunch of other parts. So what he did with the supercharger system, that’s a part that he bought. So I didn’t question him on, you know, what he bought. He just bought it and it was all on one RO, including the gas and other little knickknacks. Q. So when Norman came in to MechTech, would he buy parts for his dune buggy and then install them himself at home? A. Yes, he would do that a lot. Yep. Q. Okay. So when he came in to get work done on his work truck, he would also come in and buy parts for his dune buggy? A. Yes. Q. And -- go ahead. A. Not always, just --



Q. Sometimes. A. -- sometimes, yes. Q. And when he did that, you would put them all on the same RO? A. If I had an existing RO already opened, that’s what he would ask me to do and I’d say, yeah, that’s not a problem, I’ll just put it all on the same RO. (Excerpts from Deposition of Jim McFarland, 187:14-188:22, attached hereto as “Exhibit D.”) Mr. Dunivan and one of All Mechtech’s employees also personally observed various illegal activities in ongoing projects at Mechtech Motorsports after the business was purchased. Moreover, several customers asked Mr. Dunivan and All Mechtech employees to engage in various illegal activities. (See, Excerpts from Deposition of William R. Dunivan, Volume 1A, 187:14-188:22, attached hereto as “Exhibit B.”) Moreover, Jim McFarland advised Mr. Dunivan to break the law for friends only when he said: “Don’t sell anybody gas unless you know them.” When Mr. Dunivan questioned him, Mr. McFarland responded that Mr. Dunvian should make sure he knows a customer before selling gas to them. He further advised Mr. Dunivan to continue with the illegal practices when stating that his buddies all know us, so just take care of them. (See, Excerpts from Deposition of William R. Dunivan, Volume II, 165:13-166:5, attached hereto as “Exhibit C.”) Certainly, lay witnesses may testify regarding their personal knowledge of activities they witnessed as well as statements made to them personally.

B. Evidence relating to illegal activities at Mechtech Motorsports is not admitted as character evidence but rather related to the valuation of the business, Mr. Dunivan’s damages, and his rationale for closing Mechtech Motorsports.

Mr. Dunivan and All Mechtech do not intend to proffer evidence of illegal activities in the business in an attempt to malign the McFarlands’ character. Rather, this evidence is directly related to Mr. Dunivan and All Mechtech’s fraud and negligent misrepresentation causes of action against the Cross-Complainant/Cross-Defendants as well as to their defense that they did not engage in fraud themselves, by closing Mechtech Motorsports. Indeed, Mr. Dunivan testified that if he had known of th Illegal activities at Mechtech Motorspors, he would not have purchase the business. Mr. Yip utilized this information as a basis for his expert opinion regarding business valuation and damages. Moreover, Mr. Dunivan closed Mechtech Motorsports in part because of the information he received regarding Mechtech Motorsports’ business practices and the effect these practices had on the go-forward viability of the business. In short this information is critical to the very heart of this case and not admitted as character evidence.

C. Mr. Yip relied on testimony regarding the McFarland’s illegal actions as a basis for his opinion regarding damages and business valuation.

Tony Yip, relied on testimony that prior to sale, Mechtech Motorsports engaged in illegal activity. Specifically, Mr. Yip testified in deposition: Q. What are your opinions regarding Mr. Holstrom’s valuation? A. Really there’s only one comment i.e. his valuation is based on the sales of operation reflected on the financial statements to the extent if there were illegal business activities that contribute to the revenue and profit of the business before the purchase. And if those were excluded pretend that they would not continue, then the value will be much lower. (See, Excerpts from Deposition of Tony Yip, Rough Draft) 34:2-10, attached hereto as Exhibit A.”) As stated above, Mr. Dunivan and another All Mechtech employee personally witnessed illegal activity at Mechtech Motorsports, werew present when customers asked Mr. Dunivan to perform activities that were in violation of California and Federal laws and were asked by Jim Mcfarland to beark the law for friends. (See, Excerpts from Deposition of William R.



Dunivan, Volume 1A 187:14-188:22, attached hereto as “Exhibit B; and Excerpts from Deposition of William R. Dunivan, Volume II, 165:13-166:5, attached hereto as “Exhibit C.”) Many of these statements fall under various exceptions to the hearsay rule, including Evidence Code 1220, which states: “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity” Moreover, these statements are non-hearsay. In addition to evidence of their truth, these statements are also admitted to show their effect on Mr. Dunivan. When Mechtech Motorsports customers advised Mr. Dunivan that Jim McFarland engaged in illegal activity for their benefit, he realized that Mechtech Motorsports’ business practices had a negative correlation to its future viability. This evidence also relates to Mr. Dunivan’s defense to the fraud claims asserted by Cross-Complainants/Cross-Defendants and supports his decision to close the business after the McFarlands refused to accept its return. Even if this Court somehow determines that these statements are inadmissible hearsay, this evidence remains admissible through expert Tony Yip. California Evidence Code Section 801(b) provides:

Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

Under section 801(b), Tony Yip is permitted to base his opinion on inadmissible hearsay. Mr. Yip clearly utilized the evidence presented that Mechtech Motorsports engaged in illegal activity in forming his opinion regarding Mr. Dunivan and All Mechtech’s damages. Mr. Yip was clear that had Mr. Dunivan known of Mechtech Motorsports illegal actions, he would not have purchased the business and therefore would not have suffered economic damages. Consequently, based on the express language of California Evidence Code Section 801(b), it is improper to preclude Tony Yip from. relying on evidence provided to him regarding alleged illegal activities at Mechtech Motorsports prior to the sale of the business. It is further improper to restrict Mr. Yip from providing opinion testimony based on that same evidence in any substantial way.

D. The probative value of evidence related to illegal activity at Mechtech Motorsports prior to sale is substantial.

Under Evidence Code Section 352, the court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create substantial danger of undue prejudice, confusing the issues, or misleading the jury. While it cannot be disputed that some potential for prejudice exists, given that the allegations of illegal activity are central to claims and defenses in this case, there is no basis to find that the prejudicial impact substantially outweighs the highly. probative nature of this information. Indeed, Mr. Yip conducted an analysis regarding the financial document provided to him, along with the information regarding illegal activity. Mr. Yip testified as follows: Q. So your opinion would not change? A. Would not change. Q. And why not? A. Illegal business activities. Whether or not it was there certainly is an important factor but it seems like there are other things that was going on that’s causing Mr. Dunivan to feel different about the purchase. We talk about for instance lack of disclosure about paying America Sheppard under the table. The lack of disclosure if I recall there’s some testimony about there’s vacation accrued that’s not paid. And then -- actually we do have the numbers in one of the pages on Exhibit 4. When you look at that, there’s a pretty large difference in terms of the monthly revenue that I think is reflected on page 3 and 4 of Exhibit 4. When you compare the monthly revenue of $20.000 during the two and a half months of operation versus the financial statements of Mechtech Motorsports before the purchase, they don’t make sense. There’s something that doesn’t



seem to live at this point in time. Either there were these illegal business activities that our client refused to do that hurt the business after purchase or maybe the representation made by the McFarlands with respect to how they were doing were not accurate. There were all kinds of things that were_ being discovered after the purchase that will lead to a fair, I believe, position to take that the client would not have - Mr. Dunivan would not have purchased the business had he known about all these things. Q. Are there any other possible explanations other than the two that you just discussed for a lower monthly average revenue stream? A. I actually tried very, very hard to look at that in trying to come up with some logical explanations. I couldn’t. I couldn’t come up with any other possible logical explanations. (See, Excerpts from Deposition of Tony Yip, (Rough Draft) 29:19-31:12, emphasis added, attached hereto as “Exhibit A.”) Mr. Yip determined that Mr. Dunivan would not have purchased the business had he known about the variety of possible illegal activities occurring at Mechtech Motorsports Subsequently, it is improper to exclude evidence of illegal activity in Mechtech Motorsports prior to sale based on Evidence Code Section 352 as the probative value of the evidence are by no means substantially outweighed by dangers fatal to the fact-finding process.

III. CONCLUSION

Based on the foregoing, Mr. Dunivan and All Mechtech, LLC respectfully request that this Court deny Cross-Complainant/Cross-Defendant’s Motion in Limine to exclude evidence regarding alleged violations of the tax code, catalytic converter laws, laws governing the installation of nitrous oxide kits, or laws governing the sale of racing fuel. Dated: October 3, 2012 STRATTON & GREEN, ALC By: <<signature>> CYNTHIA L. STRATPON, ESQ. Attorney for Defendant/Cross-Complainant DUNIVAN and ALL MECHTECH

End of Document




Filings (26)












6. Jim McFarland, Mechtech Motorsports, Inc., and Jeanne McFarland’s Motion in Limine to Exclude





Expert Testimony by Tony Yip Regarding the Moving Parties; “Alter Ego” Allegations THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634629









11. Defendant/Cross-Complainant/Cross-Defendant William R. Dunivan and All Mechteche, LLC’S Demurer





and Memorandum of Points and Authorities in SupportTHE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634646









16. Plaintiff’s Settlement Conference Statement THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634650






























Direct History (1)










Title Court Date




















William R. Dunivan and all Mechtech, LLC’s Opposition to Motion in Limine to Exclude Expert Testimony by Tony Yip Regarding the Moving Parties’ “Alter Ego” Allegations (3 of 4) THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; all Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:







MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; all Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants,


No. 37-2011-00055785-CU-BC-NC. October 3, 2012.

William R. Dunivan and all Mechtech, LLC’s Opposition to Motion in Limine to Exclude Expert Testimony by Tony Yip Regarding the Moving Parties’ “Alter Ego” Allegations (3 of 4)

Cynthia L. Stratton, Esq. (Bar No. 185652), Stratton & Green, ALC, 8880 Rio San Diego Drive, Ste. 1000, San Diego, CA 92108, Tel: (619) 718-4820, Fax: (619) 718-4825, Attorneys for Defendants/Cross-Complainants All Mechtech and William R. Dunivan.


Dept.: N-28 Trial Date: October 29, 2012 Trial time estimate: 10 days Jury Requested: Yes Court Reporter Requested: Yes TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT Defendant/Cross-Complainants, William R. Dunivan (“hereinafter referred to as “Mr. Dunivan”) and All Mechtech, LLC (hereinafter referred to as “All Mechtech”), hereby submit the following Opposition to Cross-Complainants/Cross-Defendants’ Motion in Limine to Exclude Expert Testimony by Tony Yip regarding the moving parties’ “Alter Ego” Allegations. This Opposition is based upon the grounds that Plaintiff improperly applies the governing laws of evidence of the state of California to this case, including, but not limited to Evidence Code Sections 1200 et seq. and 801(b) and Code of Civil Procedure section 2034.260. Cross-Complainants/Cross-Defendants’ basis for this motion are that such testimony goes, beyond the scope of Mr. Yip’s expert witness designation and that such testimony is more prejudicial than probative. These arguments remain without merit upon examination of the facts in this case and fail to provide a legal basis to exclude the evidence at issue unless the Court grants Mr. Dunivan and All Mechtech’s Motion in Limine to exclude such unsupported argument on this issue.

I. FACTS RELATED TO THE INSTANT MOTION

In the instant matter, Cross-Complainants/Cross-Defendants clearly intend to allege an “alter ego” theory if liability between



Mr. Duniuvan and All Mechtech. However, there theory has no basis in fact and is simply an allegation by counsel. Mr. Dunivan did initially capitalize All Mechtech. Moreover, over the next month, while All Mechtech’s checking account and credit cards were opened, Mr. Dunivan provided funds for the benefit of All Mechtech. Each such transaction was notated in All Mechtech’s Transfer Ledger. (See, All Mechtech, LLC’s Transfer Ledger, Bates stamped 132-135, which are portions of trial Exhibit 120, attached hereto as “Exhibit A” and alson attached and authenticated in “Exhibit A” to Mr. Dunivan and All Mechtech’s Motion in Limine No. 2 of 2.) Notably, Cross-Complainants/Cross-Defendants failed to ask their expert witness to opine regarding the notations in the ledger or provide any other option regarding the facts related to their unsupported theory of liability. Regardless, counsel for Mr. Dunivan and All Mechtech DID ask Cross-Complainants/Cross-Defendants’ expert regarding commingling of funds, who testified based upon his experience as a Certified Public Accountant and Accredited Business Valuator, that as long as payments such as those made by Mr. Dunivan, are properly notated, which could be on a typewritten document or a cocktail napkin, there is no comingling of funds. Now, moving parties attempt to limit Mr. Yip’s testimony since the facts of this case, as well as their own expert witness, do not support their unfounded theory.

II. MEMORANDUM OF POINTS AND AUTHORITIES

A. Testimony regarding the lack of evidence of comingling of funds fits squarely within, Tony Yip’s Expert Designation

Tony Yip’s testimony regarding alleged commingling of funds and the lack thereof fits squarely within Mr. Dunivan and All Mechtech’s expert designation. Mr. Dunivan and All Mechtech’s expert witness designation indicated that Mr. Yip will testify regarding ‘Valuation of Mechtech Motorsports, evaluation of all economic and/or accounting information and data regarding Mechtech Motorsports, and economic damage computation. (Expert Witness Designation, attached hereto as “Exhibit B.”) Indeed, comingling of funds, and the lack thereof, is determined by the “evaluation of all economic and/or accounting information and data regarding Mechtech Motorsports.” Mr. Yip’s deposition took place on October 1, 2012. At said deposition, Mr. Yip testified he is qualified to evaluate whether there has been commingling of funds from a fact based perspective by looking at the accounting information and/or data. Mr. Yip is a Certified “Public Accountant, Accredited in Business Valuation and has a Masters in Business Administration. (See, Tony Yip’s Curriculum Vitae, attached hereto as “Exhibit C”) Mr. Yip is not opining as to the ultimate and unsupported legal theory raised by Cross-Complainants/Cross-Defendants regarding their Alter Ego theory of liability. Rather, Mr. Yip will testify regarding the underlying facts as to the existence of commingling, or lack thereof. Specifically, Mr. Yip testified that one could look to the commingling of funds by looking at the accounting information and data from the business. Q. So what specifically did you review in forming your opinions in this regard regarding commingling funds? A. I look at how he conduct the -- I just testified to that I realize -- no, by looking at what went through the bank accounts. Was there any commingling of this specific business versus other entities of the business or personal nature in terms of funds being commingled mixed up, go through the same account and disbursements leaving, going through the same bank account without any kind of tracking. We don’t have anything like that here. It is very Straightforward. When you look at all the disbursements that related to the business when you look at the deposit side i.e. the revenue side, it is pretty much explained by the source and that’s why we have that one page on Exhibit 4 and that page 2 to show where the money coming from. It’s coming from loans from him that’s being kept track of and then it is coming from the business itself. There’s no mixing of the activities with other entities. (See, Excerpts from Deposition of Tony Yip, (Rough Draft) 42:21-43:16, attached hereto as “Exhibit D.”) Mr. Yip’s determination that All Mechtech and Mr. Dunivan did not commingle funds stemmed from his review of the accounting information relating to Mechtech Motorsports. Ultimately, it is the Cross-Complainants/Cross-Defendants who allege an “alter ego” theory of liability between Mr. Dunivan and All Mechtech. Simply because the moving parties failed to provide any expert testimony to support their specious claim should not bar Mr. Dunivan and All Mechtech from presenting evidence in rebuttal.



Moreover, Mr. Yip will only provide testimony regarding these facts should Cross-Complainants/Cross-Defendants attempt to provide evidence to the contrary. Indeed, since there is no basis for the “alter ego claim” whatsoever, as indicated by Mr. Dunivan and All Mechtech’s Motion in Limine to exclude such argument, there is no need for any testimony at all regarding the unsupported allegation regarding comingling. However, should Cross-Complainants/Cross-Defendants be permitted to raise such a baseless argument, Mr. Yip must be able to testify to his review of the relevant accounting information and his conclusion that no comingling took place.

B. Mr. Yip’s testimony regarding the lack of evidence in the accounting records to show comingling of funds is entirely probative to Cross-Complainants/Cross-Defendants’ allegation of an “alter ego” theory of liability if such theory is permitted.

Cross-Complainants/Cross-Defendants’ allegation regarding comingling of funds is wholly unsupported by the evidence in this case. As stated above, Mr. Yip reviewed the accounting records in this matter, including All Mechtech’s transfer ledger, which shows that Mr. Dunivan properly notated all personal loans. (See, Excerpts from Deposition of Tony Yip, (Rough Draft) 42:21-43:16, attached hereto as “Exhibit D.”) Despite Cross-Complainants/Cross-Defendants failure to ask their economic expert, Richard Holstrom, to testify regarding the allegations of commingling of funds, Mr. Dunivan and All Mechtech’s counsel asked Mr. Holstrom several questions regarding said allegation. Mr. Holstrom testified: Q: In terms of accounting for personal loans properly, does that have to be on any type of legal letterhead? A: No. Q: Can it be done on a general ledger? A: Could be a note on a napkin. It’s not the best way to do it, but as long as it gets done properly doesn’t make a difference. (Excerpts from Deposition of Richard Holstrom, (Rough Draft) 81:1-8, attached hereto as “Exhibit D.”) Mr. Holstrom further testified: Q: Oh, fair enough, so it’s - - in talking about accounting for a personal loan to a business properly, it’s your opinion as a CPA that as long as any such loan has been accounted for properly, that could be on a formal typewritten document or cocktail napkin as lodge (sic) as it’s accounted for that’s proper? [Objections] A: Yes. (Excerpts from Deposition of Richard Holstrom, (Rough Draft) 82:2-11, attached hereto as “Exhibit D.”.) Ultimately, underlying facts regarding comingling of finds are directly probative to defend against Cross-Complainant/Cross-Defendants’ allegation of an “alter ego” theory should they be permitted to present said theory. As stated in Mr. Dunivan and All Mechtech’s Motion in Limine to exclude evidence regarding comingling and undercapitalization, evidence of this issue should not be introduced by any party to this action. Indeed, the Mr. Dunivan and All Mechtech are most likely to be prejudiced by introduction of this theory since there is a substantial danger that jurors might be confused by innuendo from the Cross-Defendants that Mr. Dunivan’s checks from his personal account equate to a comingling of funds. Certainly, the handwritten notes accounting for the personal loans could be confusing to a jury given the common, but inaccurate, perception that corporate formalities must look formal. However, if Cross-Complainants/Cross-Defendants attempt to argue that there is comingling of funds, certainly Mr. Yip can testify that his review of the accounting information regarding Mechtech Motorsports does not support such an allegation.



III. CONCLUSION

Based on the foregoing, Mr. Dunivan and All Mechtech, LLC respectfully request that this Court deny Cross-Complainant/Cross-Defendant’s Motion in Limine, unless this motion is made moot by the Court’s favorable ruling on their Motion in Limine to exclude unsupported argument that Mr. Dunivan and All Mechtech comingled funds. Dated: October 3, 2012 STRATTON & GREEN, ALC By: <<signature>> CYNTHIA L. STRATTON, ESQ. Attorney for Defendant/Cross-Complainant DUNIVAN and ALL MECHTECH

End of Document




Filings (26)






































16. Plaintiff’s Settlement Conference Statement THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions.





2012 WL 7634650



















26. Expert Resume of Tony Yip Tony Yip, C.P.A.





2012 WL 7985707




Direct History (1)










Title Court Date




















Defendant’s Opposition to Plaintiff’s Motion for New Trial; Declaration of David P. Berman; Declaration of James David Brenner; Objections to Declaration of Sherry Schacht Richard A. POWELL, Plaintiff, v. REDHAWK HAND CAR WASH; Naythan Properties LLC.; Aris Pepes; and Does 1 to 50, Inclusive, Defendants. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:


Richard A. POWELL, Plaintiff, v. REDHAWK HAND CAR..., 2012 WL 6630831...




Richard A. POWELL, Plaintiff, v.

REDHAWK HAND CAR WASH; Naythan Properties LLC.; Aris Pepes; and Does 1 to 50, Inclusive, Defendants.

No. 37-2011-00055117-CU-PO-NC. October 1, 2012.

Defendant’s Opposition to Plaintiff’s Motion for New Trial; Declaration of David P. Berman; Declaration of James David Brenner; Objections to Declaration of Sherry Schacht

Daley & Heft, LLP, Attorneys at Law, Robert R. Heft, Esq. (SBN 076739), David P. Berman, Esq. (SBN 123008), 462 Stevens Avenue, Suite 201, Solana Beach, CA 92075, Telephone: (858) 755-5666, Facsimile: (858) 755-7870, E-mail: [email protected], [email protected], Attorneys for Defendant Naythan Properties, LLC.


Date: October 11, 2012 Time: 3:00 p.m. Dept: N-28 Complaint Filed: June 7, 2011 Trial Date: June 8, 2012

I. INTRODUCTION Plaintiff proffers three arguments, In his attempt to win a new trial. The first, and most extensively argued, is that the jury committed misconduct by disregarding the court’s jury instructions. The second is that as a result of this misconduct, the jury entered a verdict inconsistent with the evidence that was against the law. The final argument rehashes plaintiff’s argument in his Motion for Judgment Notwithstanding the Verdict in which he claims there was not substantial evidence supporting the verdict. Because plaintiff’s argument seeking a JNOV is opposed in other papers, the central issue for the court’s resolution here is whether there was juror misconduct, since if there was none, plaintiff’s first two arguments fail. Plaintiff fails to show juror misconduct for two reasons. First, the relevant portions of the declaration of Sherry Schacht, on which plaintiff relies to show juror misconduct, is inadmissible. Because plaintiff has no evidence in support of his argument of juror misconduct, this court must deny his motion. Second, if this court finds the declaration is admissible, defendant has submitted the declaration of juror James David Brenner which is admissible and which contradicts the declaration submitted by plaintiff. Because of this direct and material contradiction, plaintiff has failed to meet his burden to show misconduct and his motion must be denied.

II. PLAINTIFF CANNOT PROVE ANY OF THE THREE ELEMENTS NECESSARY TO WIN A NEW TRIAL



BECAUSE OF JUROR MISCONDUCT

In order for this court to determine whether there was juror misconduct, the court must determine whether plaintiff has submitted admissible evidence in the form of a juror declaration, whether the admissible evidence in the declaration establishes misconduct, and, if there was misconduct, whether it was prejudicial to plaintiff. (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160.) The trial court has broad discretion when deciding these three issues, and its rulings will not be disturbed absent a clear abuse of discretion. (Id.)

A. The Relevant Portions of the Declaration of Sherry Schacht are Inadmissible

Whether the statement of a juror made in a declaration is admissible for purposes of deciding to grant a new trial is governed by Evidence Code section 1150, subdivision (a):

Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.

Section 1150 properly distinguishes between “proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved....” (Krouse v. Graham (1977) 19 Cal.3d 59, 80.) Indeed, “[t]he only improper influences that may be proved under section 1150 to impeach a verdict... are those open to sight, hearing, and the other senses and thus subject to corroboration.” (Krouse, 19 Cal.3d at 80.) “Evidence of jurors’ internal thought processes is inadmissible to impeach a verdict.” (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1124.) “Accordingly, juror declarations are inadmissible to the extent that they purport to describe the jurors’ understanding of the instructions or how they arrived at their verdict.” (Bell, 181 Cal.App.4th at 1124-1125 (emphasis added).) Plaintiff relies on the Declaration of Sherry Schacht for the impermissible purpose of showing that the jury misunderstood the jury instructions. Plaintiff claims the “jury overtly agreed to apply the ‘substantial factor’ concept in a manner that was contrary to the plain language of the jury instructions provided by the Court.” (Plaintiff’s Memorandum, 3:9-11.) In other words, plaintiff asserts that the jury did not understand the jury instructions they were given and, consequently, applied an incorrect legal standard to the facts. Yet, the only portions of Schacht’s Declaration which might be cited in support of this argument are inadmissible under section 1150. Any portion of the Schacht Declaration containing the “subjective reasoning process” of the jurors is inadmissible. (Bell, 181 Cal.App.4th at 1125-1126 (holding evidence of jurors’ subjective understanding of the term “potential risks” as used in special verdict form was inadmissible).) The Schacht Declaration is filled with references to juror opinion, juror discussion, juror agreements and juror conclusions, all of which tend to show the jurors’ understanding (or, as plaintiff would have it, misunderstanding) of jury instructions and how they arrived at their verdict. All of this must be excluded. The following portions of the declaration cannot be considered by this court because they reflect the subjective reasoning of the jurors: • “... and it was discussed amongst the jurors that this was the applicable burden of proof to apply to this case.” (Paragraph 6, emphasis added; objection No. 1.) • “Several jurors expressed the opinion that the two instructions were in contradiction with each other.” (Paragraph 8, emphasis added; objection No. 2.) • “The jury agreed to use the ‘substantial factor’ jury instruction as the applicable instruction for the burden of proof required for Richard Powell to prove his case.” (Paragraph 10, emphasis added; objection No. 3.)



• “The jury discussed and agreed that in order to find that the negligence of Naythan Properties, LLC was a substantial factor in causing Richard Powell’s harm it had to bear the majority of the responsibility for causing his harm.” (Paragraph 12, emphasis added; objection No. 4.) • “The majority of the jury agreed that Mr. Pepes was the ‘substantial factor’ in causing harm to Richard Powell.” (Paragraph 13, emphasis added; objection No. 5.) • “After the jury found that Mr. Pepes was the ‘substantial factor’ in causing harm to Richard Powell, the jury discussed and reached the conclusion that they were precluded from finding any other party as a ‘substantial factor’ in causing harm to Richard Powell.” (Paragraph 14, emphasis added; objection No. 6.) Once the court excludes this inadmissible evidence purporting to describe the jurors’ understanding of the instructions or how they arrived at their verdict, the record compels denial of plaintiff’s motion. The jury instructions at issue - CACI 200 (Preponderance of Evidence), 430 (Substantial Factor), and 431 (Multiple Causes) - are facially clear and understandable. (Copies attached to Declaration of David Berman at ¶¶ 4-6.) The plain language of these instructions clearly conveys the law to the jurors: “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of harm.” (CACI 430, attached as Exhibit 2 to Berman Declaration.) The instructions at issue were not bespoke instructions made for this trial, but turnkey instructions that have been used in thousands of trials without problem. The court must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. (People v. Castaneda (2011) 51 Cal. 4th 1292, 1321.) What is peculiar about the few admissible statements in Schacht’s Declaration is they confirm the jury understood the instructions. The jury voted that Naythan Properties, LLC was negligent in the oversight of its property, but then voted that Naythan Properties, LLC was not a substantial factor in the harm caused to plaintiff. (Schacht Declaration, ¶¶ 11 and 15.) In other words, it appears that the jury did vote on the two-step process mandated by the jury instructions and the plaintiff’s special verdict form which required the jury to determine negligence by a preponderance of the evidence and then determine whether that negligence was a substantial factor in the harm done to Powell. (Declaration of David Berman, ¶ 7; Declaration of James Brenner, ¶ 9.) Because the jury instructions are not misleading and any putative evidence to the contrary is inadmissible, this court must conclude that the jury was not confused and there was no misconduct. (Bell, 181 Cal.App.4th at 1126 (finding that upon exclusion of inadmissible evidence, special verdict form not misleading and did not confuse jury).)

B. Even if the Schacht Declaration is Admissible, the Declaration of James Brenner Contradicts It and Plaintiff’s Motion Should be Denied

James Brenner was a juror during the trial at issue and was present for and participated in all jury deliberations and voting. (Declaration of James David Brenner, ¶¶ 3 and 5.) Contrary to Schacht’s Declaration at paragraph 9, Brenner specifically recalls using CACI 200, the Burden of Proof instruction, throughout jury deliberations. (Brenner Declaration, ¶ 8.) He does not recall replacing CACI 200 with the Substantial Factor Instruction (CACI 430) and does not recall any vote to use the Substantial Factor instruction as the burden of proof required for plaintiff to prove his case. (Brenner Declaration, ¶¶ 8 and 11.) In other words, Brenner recalls that the applicable CACI instructions were read by the jurors and that the jurors referred to those instructions while voting on the questions posed by plaintiff’s special verdict form. (Brenner Declaration, ¶¶ 8-11.) There is no evidence of any overt act showing jury misconduct or disregard of the CACI instructions. The Brenner Declaration plainly contradicts Schact’s declaration and plaintiffs assertions that “[t]he jury concocted its own



theory regarding what constitutes a ‘substantial factor’ causing harm” and that the jury “failed to follow” the court’s instructions as set forth in CACI 200, 430, and 431. (Plaintiff’s Memorandum, 8:9-15.) Where the declarations submitted by the parties conflict on the material issues, the moving party has not carried its burden to show misconduct and the motion for new trial should be denied. (Oakland Raiders v. National Football League (2007) 41 Cal. 4th 624, 642.) There is no evidence of jury misconduct because there was no misconduct. This court should deny plaintiff’s motion for a new trial.

C. Even if this court finds that admissible evidence shows juror misconduct, there is no prejudice to Powell.

Assuming that plaintiff can show that the jurors affirmatively used the substantial factor instruction as the basis for deciding Question no. 3 on plaintiff’s special verdict form, there is no prejudice to plaintiff. The jurors had already found that Naythan Properties, LLC was negligent. Question no. 3 specifically asked the jurors to apply the substantial factor instruction, which, even by Schacht’s account, they did. (Schacht Declaration, ¶ 15.) In fact, Schacht herself participated in the unanimous jury vote finding that that Naythan Properties, LLC was not a substantial factor in plaintiff’s harm. (Schacht Declaration, ¶ 15.) CACI 430 is clear in its instruction that a substantial factor in causing harm “does not have to be the only cause of the harm.” (Exhibit 2 to Berman Declaration.) Furthermore, although not mentioned in Schacht’s Declaration, the jury was given CACI 431, which states in part: “Naythan Properties, LLC cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing Mr. Powell’s harm.” (Exhibit 3 to Berman Declaration.) The court must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. (Castaneda 51 Cal. 4th at, 1321.) Thus, this court must assume that the jury read, understood, and applied CACI 431. Because the jury applied the instructions correctly, there can be no prejudice to plaintiff.

III. THE VERDICT IS SUPPORTED BY SUBSTANTIAL EVIDENCE; IT IS NOT INCONSISTENT WITH THE EVIDENCE

Plaintiff’s argument on this score is illogical. Plaintiff asks this court to believe that it is inconsistent for the jury to find a defendant was negligent yet also find that same negligence was not a substantial factor in plaintiff’s harm. Yet, if such a verdict is not possible, then why has the Judicial Council of California created a jury instruction permitting a jury to make exactly that determination? (CACI 430.) Here, the special verdict form created by plaintiff first asked the jury to determine whether Naythan Properties, LLC was negligent in the use, maintenance or management of its property. (Special Verdict, Question no. 2, attached as Exhibit A to Brenner declaration.) The jury found that it was. The jury was next asked to apply CACI 430 and determine if defendant’s negligence was a substantial factor in causing harm to plaintiff. (Special Verdict, Question no. 3, attached as Exhibit A to Brenner declaration.) The jury found that it was not. Plaintiff argues that the evidence presented at trial does not support a finding that Naythan Properties, LLC’s negligence was not a substantial factor. (Plaintiff’s Memorandum, 11:21-12:6.) The Supreme Court has explained that where an actor’s wrongful conduct “operated concurrently with other contemporaneous forces to produce the harm, it is a substantial factor, and thus a legal cause, if the injury, or its full extent, would not have occurred but for that conduct.” (In re Ethan C. (2012) 54 Cal.4th 610, 640.) CACI 430 follows this statement of the law, instructing the jury that a defendant’s negligence is not a substantial factor if it is but a “remote or trivial” cause of harm. Based on this statement of the law, plaintiff argues that the evidence presented at trial does not support a conclusion that defendant’s negligence was no more than a “remote or trivial” factor contributing to the harm sustained by plaintiff. (Id.) On the contrary, as shown in defendant’s Opposition to Plaintiff’s Motion for Judgment Notwithstanding the Verdict (incorporated herein by reference), no evidence was presented to show that Naythan Properties, LLC’s negligence was anything but a remote or trivial factor. Both plaintiff’s and defendant’s experts agreed that the subject incident was



unforeseeable. Pepes, the driver of the car which struck plaintiff, testified that he had never experienced sudden acceleration or driven in a manner similar to the day of the incident. Defendant’s vehicle expert Dr. Guentzler, called by plaintiff, added that there were no mechanical defects in Pepes’ car that would have caused it to accelerate uncontrollably. The waiting area in which plaintiff was sitting when he was injured was essentially in the same condition as when it was originally designed and violated no Building Code, Municipal Ordinance, or statute. Finally, there was no evidence of any requirement that a protective barrier should have been installed or if it had been installed that it would have prevented the incident. In short, the evidence presented clearly supports a finding that the only substantial factor causing harm to plaintiff was the unintended and unforeseeable acceleration of Pepes. The jury’s verdict is not inconsistent with the evidence. Plaintiff’s motion for a new trial should be denied.

IV. THE EVIDENCE PRESENTED SUPPORTS THE VERDICT AND THE VERDICT WAS NOT AGAINST THE LAW.

On these issues, plaintiff simply repeats his prior arguments and his arguments in his Motion for Judgment Notwithstanding the Verdict, claiming that the verdict was not based on substantial evidence and was inconsistent with the evidence presented. As shown above and in its Opposition to Plaintiff’s Motion for Judgment Notwithstanding the Verdict, Naythan Properties, LLC has refuted this argument in all aspects. In short, there is no evidence the jury disregarded any jury instructions and there is substantial evidence to support a finding that the negligence of Naythan Properties, LLC was not a substantial factor in causing plaintiff’s harm.

V. CONCLUSION

Plaintiff has not met his burden to show a need for a new trial. A substantial portion of the Schacht Declaration is inadmissible and, even if it were admissible, there is no evidence the jury disregarded or misapplied any jury instructions. Moreover, the Schacht Declaration is directly contradicted on material issues by the Brenner Declaration, meaning that plaintiff has not carried his burden to show misconduct. And, even if there were jury misconduct, the jury clearly applied the substantial factor instruction when it found that Naythan Properties, LLC was not a substantial factor in plaintiff’s harm. Therefore, there is no prejudice to plaintiff regardless of the existence of any potential jury misconduct. Finally, as explained above and in detail in defendant’s Opposition to plaintiff’s Motion for Judgment Notwithstanding the Verdict, there is substantial evidence to support the jury’s conclusion that the negligence of Naythan Properties, LLC was a “remote and trivial” factor in causing harm to plaintiff and, therefore, was not a substantial factor in causing that harm. In light of the foregoing, this court should deny plaintiff’s motion for a new trial. Dated: September 28, 2012 Daley & Heft, LLP By: <<signature>> Robert R. Heft David P. Berman Attorneys for Defendant/Cross-Defendant/Cross-Complainant Naythan Properties, LLC

End of Document


Richard A. POWELL, Plaintiff, v. REDHAWK HAND CAR WASH; Naythan Properties L...


Filings (24)


1. Cross-Complaint--Personal Injury, Property Damage, Wrongful Death Richard A. POWELL, v. REDHAWK HAND CAR WASH, et al.; Naythan Properties, LLC, Cross-Complaint, Redhawk Hand Car wash, Inc., Aris Pepes, Paul Knapp, and Tom Grady, Does 1 to 20, Cross-Defendant. 2012 WL 6630897

Cal.Super. Jan. 23, 2012 Pleading

2. Cross-Complaint Richard A. POWELL, Plaintiff, v. REDHAWK HAND CAR WASH; Naythan Properties, LLC; Aris Pepes; and Does 1 to 50, Inclusive, Defendants; Redhawk Hand Car Wash, Inc., Cross-Complainant, v. Aris Pepes; and Roes 1 to 50, Inclusive, Cross-Defendants. 2011 WL 9688099

Cal.Super. Aug. 24, 2011 Pleading

3. Cross-Complaint for Equitable Indemnity, Contribution and Declaratory Relief Richard A. POWELL, Plaintiffs, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes; and Does 1 to 50 Inclusive, Defendants; Aris Pepes, Cross-Complainants, v. Redhawk Car Wash; Naythan Properties, LLC., and Roes 1 through 20, Inclusive, Cross-Defendants. 2011 WL 9688098

Cal.Super. Jul. 18, 2011 Pleading

4. Complaint--Personal Injury, Property Damage, Wrongful Death Richard A. POWELL, Plaintiff, REDHAWK HAND CAR WASH; Naythan Properties, LLC; Aris Pepes; and Does 1 to 50, inclusive, Defendant. 2011 WL 9688101


5. Defendant Naythan Properties’ Opposition to Plaintiff’s Motion for Judgment Notwithstanding the Verdict; Declaration of David P. Berman in Support Thereof; Notice of Lodgment Richard A. POWELL, Plaintiff, v. REDHAWK HAND CAR WASH; Naythan Properties, LLC.; Aris Pepes; and Does 1 to 50, Inclusive, Defendants, And Related Cross Actions. 2012 WL 6630825


6. Plaintiff’s Points and Authorities in Support of Motion for Judgment Notwithstanding the Verdict Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes, and Does 1 to 50, Defendants. 2012 WL 6630779


7. Plaintiff Richard A. Powell’s Issue Brief re Defendant Naythan Properties LLC’s Special Jury Instruction No. 2 Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes; and Does 1 through

Cal.Super. Jul. 13, 2012 Motion




50, inclusive, Defendants. 2012 WL 6630777

8. Plaintiff’s Brief on Exclusion of Inadmissible Trial Exhibits Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes, and Does 1 to 50, Defendants. 2012 WL 6630783


9. Plaintiff’s Brief on Admissibility of Percipient Witness Opinion Testimony Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes, and Does 1 to 50, Defendants. 2012 WL 6630778


10. Trial Brief of Defendant Naythan Properties, LLC Richard A. POWELL, Plaintiff, v. REDHAWK HAND CAR WASH; Naythan Properties, LLC.; Aris Pepes; and Does 1 to 50, Inclusive, Defendants, And Related Cross Actions. 2012 WL 6630781

— Cal.Super. Jun. 1, 2012 Filing

11. Reporter’s Partial Transcript of Proceedings Testimony of Robert Stephen Griswold Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes, and Does 1 to 50, Defendants. 2012 WL 6947799

Cal.Super. Jul. 5, 2012 Expert Materials

12. Deposition of Expert Robert S. Griswold Richard A. POWELL, Plaintiff, v. REDHAWK HAND CAR WASH; Naythan Properties, LLC; Aris Pepes; and Does 1 to 50, inclusive, Defendants. 2012 WL 6948511

Cal.Super. May 15, 2012 Expert Materials

13. Deposition of Michael Pino Richard A. POWELL, Plaintiff, v. REDHAWK HAND CAR WASH; Naythan Properties, LLC.; Aris Pepes; and Does 1 to 50, Inclusive, Defendants. 2012 WL 6948510


14. Deposition of Mark E. Rieser, II, MS, PE Richard A. POWELL, Plaintiff, v. REDHAWK HAND CAR WASH; Naythan Properties, LLC; Aris Pepes; and Does 1 to 50, inclusive, Defendants. 2010 WL 9100960


15. 2012 WL 6927387, 3 Trials Digest 16th 17 Powell vs. Redhawk Hand Car Wash

— Cal.Super. Aug. 23, 2012 Jury Verdict

16. Special Verdict Form Richard A. POWELL, Plaintiff, v. NAYTHAN PROPERTIES, LLC, Defendant. 2012 WL 6626871

Cal.Super. Jul. 19, 2012 Jury Verdict

17. Docket 37-2011-00055117-CU-PO-NC RICHARD A POWELL v. REDHAWK HAND CAR WASH



— Cal.Super. Aug. 23, 2012 Expert Court Document





Cal.Super. Jul. 5, 2012 Expert Court Document


Cal.Super. May 15, 2012 Expert Court Document





23. Expert Resume of Michael Pino Michael Pino 2012 WL 7070255



Cal.Super. May 4, 2012 Expert Resume




Direct History (2) 1. Powell v. Redhawk Hand Car Wash 2012 WL 6650291 , Cal.Super. , Aug. 23, 2012

New Trial Denied by

2. Powell v. Redhawk Hand Car Wash 2012 WL 6650259 , Cal.Super. , Oct. 11, 2012

Related References (1) 3. Powell v. Redhawk Hand Car Wash 2012 WL 6650476 , Cal.Super. , Jul. 02, 2012




Title Court Date

1. Powell v. Redhawk Hand Car Wash 2012 WL 6650259

DATE: 10/11/2012 TIME: 03:00:00 PM DEPT: N-28 CLERK: Noreen McKinley REPORTER/ERM: Not Reported BAILIFF/COURT ATTENDANT: CASE INIT.DATE: 06/07/2011 CASE CATEGORY: Civil -Unlimited...

Cal.Super. Oct. 11, 2012


Dept: N-28 Complaint Filed: June 7, 2011 Trial Date: July 2, 2012 This matter came on regularly for trial on July 2, 2012 at the above entitled court, the Honorable Earl H. Maas,...

Cal.Super. Aug. 23, 2012


Plaintiff RICHARD A. POWELL and Defendants REDHAWK HAND CAR WASH, INC. (erroneously sued herein as RED HAWK HAND CAR WASH), NAYTHAN PROPERTIES, LLC and ARIS PEPES through their...

Cal.Super. Jul. 2, 2012


Defendant Naythan Properties’ Opposition to Plaintiff’s Motion for Judgment Notwithstanding the Verdict; Declaration of David P. Berman in Support Thereof; Notice of Lodgment Richard A. POWELL, Plaintiff, v. REDHAWK HAND CAR WASH; Naythan Properties, LLC.; Aris Pepes; and Does 1 to 50, Inclusive, Defendants, And Related Cross Actions. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:







REDHAWK HAND CAR WASH; Naythan Properties, LLC.; Aris Pepes; and Does 1 to 50, Inclusive, Defendants, And Related Cross Actions.

No. 37-2011-00055117-CU-PO-NC. October 1, 2012.

Defendant Naythan Properties’ Opposition to Plaintiff’s Motion for Judgment Notwithstanding the Verdict; Declaration of David P. Berman in Support Thereof; Notice of Lodgment

Daley & Heft, LLP, Attorneys at Law, Robert R. Heft, Esq. (SBN 076739), David P. Berman, Esq. (SBN 123008), 462 Stevens Avenue, Suite 201, Solana Beach, CA 92075, Telephone: (858) 755-5666, Facsimile: (858) 755-7870, E-mail: [email protected], [email protected], Attorneys for Defendant/Cross-Defendant/Cross-Complainant Naythan Properties, LLC.


Trial Date: July 2, 2012 Verdict Date: July 19, 2012 Judgment Entered: August 23, 2012 Notice of Judgment: August 27, 2012 Date: October 11, 2010 Time: 3:00 p.m. Dept. N-28 Complaint Filed: June 7, 2011 Defendant Naythan Properties, LLC submits its Opposition to plaintiff’s JNOV motion as follows:

I. INTRODUCTION

Plaintiff’s Motion for Judgment Notwithstanding the Verdict should be denied because substantial evidence was introduced which supports the verdict, plaintiff did not carry the burden of proof and there is no factual dispute that defendant Pepes caused plaintiff’s injury. Evidence introduced at trial revealed that defendant Aris Pepes drove the vehicle which hit plaintiff and a pedestrian. There was testimony from defendant Naythan Properties’ safety expert Carl Beels, in which he agreed with plaintiff’s human factors expert Alison Vredenburgh’s opinion at deposition, that the subject incident was unforeseeable.



This was the first time that Pepes had experienced sudden acceleration or driven in any similar manner. There were no prior similar incidents at the scene. Defendant Naythan Properties only owned the land, which was leased to defendant Redhawk Hand Car Wash, which was an independent business with which Naythan Properties had no involvement. Naythan Properties did not own, supervise or run Redhawk Hand Car Wash.1

1

Both defendants Pepes and Redhawk Hand Car Wash settled with plaintiff before trial began.

There was no requirement that any type of protective barrier be installed or any evidence that had a protective barrier been installed that it would have prevented the subject incident. The evidence showed that the outdoor waiting area in which the incident occurred was a common condition found in the area in which the incident occurred. Although unintended acceleration was known to occur, it was such a rare occurrence that no precautions have been specifically legislated to prevent this type of incident. Naythan Properties was aware that carwash patrons waited for their cars in the area where the incident occurred but did not believe it to be unsafe. The evidence showed that this was an exclusive tenant operating area within the control of Redhawk. The waiting area, which was in essentially the same condition as when it was originally designed, violated no applicable Building Code, Municipal Ordinance or statute.

II. STATUTORY AUTHORITY

A JNOV motion must be denied if“substantial evidence” supports the verdict. (Begnal v. Canfield Associates, Inc. (2000) 78 Cal.App.4th 66, 72.) The evidence is viewed in the light most favorable to the party securing the verdict: “If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110; Campbell v. Cal-Gar Sur. Services, Inc. (1998) 62 Cal.App.4th 563, 569.) A JNOV is similar to a “demurrer” on the evidence on which the verdict is based. Thus, for purposes of a JNOV motion, all evidence supporting the verdict is presumed true. The issue is whether these facts constitute a defense as a matter of law. (Moore v. San Francisco (1970) 5 Cal.App.3d 728, 733; Fountain Valley Chateau Blanc Homeowners Association v. Department of Veteran’s Affairs (1998) 67 Cal.App.4th 743, 750.) In ruling on a JNOV, the trial judge cannot weigh the evidence or determine the credibility of witnesses. (Hauter v. Zogarts, supra, at 110.) Conflicting evidence is resolved against the moving party. The party in whose favor the verdict was rendered is “entitled to the benefit of every favorable inference which may be reasonably drawn from the evidence and have all conflicts in the evidence resolved in his favor. (Castro v. State of California (1981) 114 Cal.App.3d 503, 507.) Inconsistencies in a witness testimony do not mean the testimony is insufficient to support the verdict. It is up to the jury to determine the weight to be given to internally inconsistent testimony. (Clener v. Hartford Insurance Company (1978) 22 Cal.3d 865, 878.) The controlling factor is that there was evidence from which the jury could have inferred facts supporting the verdict. (Hale v. Farmers Insurance Exchange (1972) 42 Cal.App.3d 681, 692.)

III. THE EVIDENCE SUPPORTED THAT DEFENDANT’S CONDUCT WAS NOT A SUBSTANTIAL FACTOR IN CAUSING PLAINTIFF’S HARM



In a negligence action, plaintiff must show “a reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered”. (Prosser & Keeton on the Law of Torts, 5th Ed. (1984) Ch. 7, “Proximate Cause” Sec. 41, p. 263.) Here, the jury was instructed in part as follows: A “substantial factor” must be more than a remote or trivial factor in causing or contributing to the harm suffered by plaintiff. (CACI 430.) In order to prove Naythan Properties was negligent plaintiff must show: 1) that Naythan Properties, LLC was negligent; 2) that Richard A. Powell was harmed; and 3) that Naythan Properties, LLC’s negligence was a substantial factor in causing Richard A. Powell’s harm. (CACI 400 per instruction given at trial.) CACI 401 defines the standard of care: “Negligence is a failure to use reasonable care to prevent harm to oneself or to others. A person can be negligent by acting or failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do the same situation. He must decide how a reasonably careful person would act in each person or party’s situation.” (CACI 401.) Notably, the instruction on negligence is separate and apart from CACI 430 on the substantial factor test of causation. The jury was also instructed on foreseeability: “Every person has a right to expect that every other person will use reasonable care and will not violate the law, unless he or she knows, or should know, that the other person will not use reasonable care or will violate the law.” (CACI 411.) Plaintiff’s Special Instruction 2 on foreseeability was also provided to the jury. It reads: “Foreseeability does not require that prior identical or similar events must have occurred. The mere fact that a particular kind of accident has not happened does not show that such accident is one that might not reasonably have been anticipated.” (See Exhibit “A”, Jury Instructions 430, 200, 400, 401, 411, plaintiff’s Special Instruction #2, all read to the jury originals of which are part of the Court’s file.) Plaintiff ignores the plain language of the Jury Instructions to argue that since the jury found defendant Naythan negligent that it did not need to prove Naythan’s conduct was a substantial factor in causing plaintiff’s harm. The Jury Instructions clearly require plaintiff to prove negligence and causation. (CACI 400, Exhibit “A”.) However, the jury, after reviewing substantial evidence concluded that there was no causation. It was not foreseeable to Naythan Properties that Aris Pepes would drive in the way that he did, causing plaintiff’s injury.

IV. EVIDENCE IN SUPPORT OF THE JURY VERDICT

The jury was provided with a constellation of substantial testimony and documentary evidence on which they reasonably relied in rendering their verdict. A summary of some, but not all, of the evidence follows. Adi Elias, the person most knowledgeable from Naythan Properties, testified that although he did not read the Lease in its entirety, he did get an understanding of the important points, including definition of the common area, from his lawyer. The common areas, according to Elias, were in the areas around the perimeter of the property. Moreover, Elias relied on Exhibit 1016, Exhibit “D” to the Lease, to conclude that the area where the incident occurred, including the parking stalls where defendant Pepes’ vehicle was located before the incident, was within the control of Redhawk Hand Car Wash. (See Exhibit “B”, Elias trial testimony p. 22:3-24:6, Exhibit 1016 at trial.) Elias further testified that he had been to the scene before the incident, that during his inspection he had seen the palapa and chairs and that nothing made him think that the waiting area was dangerous or unsafe. Further, Naythan Properties was unaware of any prior similar incidents before October 2010. (See Exhibit “B”, trial testimony of Adi Elias, pp. 24:26-26:2.)



Plaintiff’s liability expert Griswold testified that this was at most a “potentially” dangerous condition. Since there had been no similar prior incident it was not reasonable for Naythan to predict Pepes’ unforeseeable conduct. Plaintiff’s subpoenaed witness Annette Goods who testified that she actually saw the car driven by defendant Pepes come up over the curb, first hit a pedestrian and then continue on. (Exhibit “C”, trial testimony of Goods, p. 27:5-28:27.) Goods also confirmed that when inside the car wash waiting area it is impossible to see your car come out of the tunnel and thus it is necessary to move outside onto the waiting area where the incident occurred to retrieve your car. Goods also testified that she thought that the area was unsafe because the way cars would park with the front overhanging the cement island. She expressed no concern about cars traveling over the curb and across the island. After having been to the scene 14 to 21 times before the incident, she never complained to anyone in control of the car wash about the seating arrangement. (See Exhibit “C”, Goods’ trial testimony, pp. 34:10-36:8.) This testimony is important because it shows that a pedestrian was injured by the same vehicle that injured plaintiff. Plaintiff offered inconsistent testimony that the area where the impact occurred was safe to stand, but not safe to sit. Goods’ percipient opinion that the area was unsafe related only to cars extending over the raised island, not running up over the curb. Goods never made any prior safety related complaints. Defendant Pepes, who had settled before trial began, was provided with no defense through plaintiff. Pepes’ credibility was within the province for the jury to determine. He clearly testified that he had never experienced any type of similar incident and that here the car took off. Pepes never looked at the floor mat. During the incident Pepes had had no accidents within the last 10 years before the incident. (See Exhibit “D”, Pepes’ trial testimony, pp. 13:1-14:14; 18:10-20.) Plaintiff offered no testimony to support that Pepes’s vehicle had any kind of mechanical defect or to support Pepes’ claim that the floor mat caused his vehicle to accelerate. In fact, plaintiff offered conflicting testimony through defendant’s retained expert William Guentzler, Ph.D., who was called in plaintiff’s case. Guentzler offered three key opinions: On the date of the incident Pepes’ vehicle had no mechanical defects which would have caused it to accelerate uncontrollably, that the cause of the incident was driver error and Pepes’ failure to properly maintain the 20 year old mat. During his vehicle inspection, Guentzler was unable to recreate the manner in which Pepes claimed the mat had become wedged against the accelerator, causing the vehicle to go out of control. (See Exhibit “E”, Guentzler’s trial testimony, pp. 3:6-11; 12:7-14:2, 8:9-9:17; 16:21-17:3; 20:8-21:3; 22:24-23:14.) Plaintiff also presented testimony from the original project architect Roy Johnson to support his theory that the area where the incident occurred was designed not as a waiting area but as a walkway. In reviewing the plans, Johnson confirmed that the way the building was designed one had to be outside the building to see when your car comes out of the car wash tunnel. As a result people would have to come out of the car wash to wait in the area where the incident occurred to retrieve their car. (See Exhibit “F”, trial testimony of Roy Johnson, pp. 30:4-31:10.) Johnson contradicted his deposition testimony in which he testified that the area where the incident occurred, which Johnson testified in deposition was 4′ wide, was too narrow for a seating area. Johnson agreed that a seating area could be 8′ to 12′ wide as long as there was enough room for people to walk past while others were sitting. (See Exhibit “F”, Johnson trial testimony, pp. 34:5-36:4.) Johnson also testified that the walkway was safe if someone was standing on it if they were hit by a vehicle. (See Exhibit “F”, Johnson testimony, p. 37:6-10.) Johnson agreed that diagonal parking such as on a public street was safe even with a walkway in front of it because the only barrier that the Building Code requires is a curb. (See Exhibit “F”, Johnson’s trial testimony pp. 42:16-43:20.) Johnson agreed that there was no Code, regulation or statute requiring a barrier between a walking space and a parking space. (See Exhibit “F”, Johnson trial testimony, pp. 26:21-26.) Johnson’s testimony is significant. The area where the incident occurred is 8′ wide. It impeaches plaintiff’s argument that the area where the incident occurred was designed only to be a walking area and that some sort of barrier was required. The original design intended this to be a waiting area for people to pick up their car. Plaintiff’s position that the waiting area was safe for standing but unsafe for sitting is nonsense. Plaintiff did not call their human factors expert Alison Vredenburgh to testify at trial. Defendant’s safety expert Carl Beels



testified in conformity with Vredenburgh that the incident was not foreseeable. (See Exhibit “G”, trial testimony of Carl Beels, p. 31:15-26.) Beels explained why he believed that defendant Aris Pepes was the sole cause of the incident. (See Exhibit “G”, trial testimony of Carl Beels, pp. 31:27-34:16.) On cross-examination, plaintiff’s attorney confirmed with Beels why he believed the incident was not foreseeable. (See Exhibit “G”, trial testimony of Carl Beels, pp. 102:22-104:6.) Beels confirmed that at the site inspection he measured the walkway as 8′ wide and that there was no evidence that there had been any prior similar incident. (See Exhibit “G”, trial testimony of Carl Beels, p. 56:6-25.) As part of his preparation for trial Beels reviewed all of the available deposition transcripts. Beels testified that he had read plaintiff’s accident reconstruction Michael Pino’s deposition and confirmed that Pino did no analysis of how the incident occurred, that plaintiff offered no evidence about what could have possibly prevented this incident and that Beels had prior experience with cars that went through bollards. Beels also confirmed that plaintiff was not injured because the way a car was parked in the 2′ overhang in the walkway area. (See Exhibit “G”, trial testimony of Carl Beels, pp. 107:26-109:17.) Although plaintiff retained and designated a human factors expert, an engineer and an accident reconstruction expert to each discuss the various aspects of liability plaintiff called only Robert Griswold to provide premises liability “opinion” testimony. Beels disputed Griswold’s opinion that the 2′ overhang to the walkway had anything to do with the incident, distinguished Griswold’s opinion that it was safe to stand on the walkway but not safe to sit on the walkway, disputed Griswold’s opinion that it was inappropriate to change the walkway into a “seating” area and Griswold’s testimony that this was a “potentially dangerous” condition. (See Exhibit “G”, trial testimony of Carl Beels, pp. 56:26-61:22.) On cross-examination plaintiff attacked Beels’ reliance on a NHTSA study. In re-direct Beels made it clear that he relied on the NHTSA article to illustrate the point that pedal mis-applications that result in serious injuries are very rare. He disputed the short portion of the study about which plaintiff’s attorney Zucker questioned Beels. (See Exhibit “G”, trial testimony of Carl Beels, pp. 105:22-106:28.) Plaintiff’s liability expert Griswold set the tone when he made it clear that he believed that the Grand Canyon, without a railing around it, is a dangerous condition.2 (See Exhibit “H”, trial testimony of Griswold, p. 49:22-26.) He further confirmed that the subject area was only a “potentially” dangerous condition which depended on how it was used (Exhibit “H”, trial testimony of Griswold, p. 62:17-28), that he had no opinion regarding the conduct of Aris Pepes (Exhibit “H”, trial testimony of Griswold, p. 64:10-26), that despite plaintiffs contention otherwise, the inspection by defendant Naythan Properties was not at issue (Exhibit “H”, trial testimony of Griswold, p. 60:25-62:16) and that he had no idea, since he had not bothered to perform any research, whether the City of Temecula would require a permit. Griswold also agreed that the area where the incident occurred was acceptable to stand. (See Exhibit “H”, Griswold trial testimony, pp. 64:27-65:27.) 2

Plaintiff’s effort to suggest some sort of statutory requirement or conduct violated by Naythan Properties is supported by nothingbut baseless paid “expert” witness testimony.

Defendant provided testimony from architect Diane Ballard that there was no requirement for any type of permit as plaintiff claims for the seating area itself (Exhibit “I”, Ballard trial testimony, p. 13:20-15:23), and that outdoor seating was a common condition in Temecula. (See Exhibit “I”, Ballard trial testimony, pp. 17:6-18:6.) Plaintiff’s claim that it impeached Ballard’s testimony about whether the parking was originally perpendicular or diagonal to the seating at the Hospitality Car Wash was clearly resolved in re-direct. (See Exhibit “I”, Ballard trial testimony, p. 58:17-62:1.) The significance of Griswold and Ballard’s testimony taken together is that Ballard was familiar with the actual requirements as set forth in various Codes and statutes; Griswold was not.

V. CONCLUSION



The JNOV must be denied because a significant amount of substantial evidence was introduced that supports the determination of the jury of no causation. Dated: October 1, 2012 Respectfully submitted, Daley & Heft, LLP By: <<signature>> Robert R. Heft David P. Berman Attorneys for Defendant/Cross-Defendant/Cross-Complainant Naythan Properties, LLC

End of Document


Richard A. POWELL, Plaintiff, v. REDHAWK HAND CAR WASH; Naythan Properties,...


Filings (24)










5. Defendant’s Opposition to Plaintiff’s Motion for New Trial; Declaration of David P. Berman; Declaration of James David Brenner; Objections to Declaration of Sherry Schacht Richard A. POWELL, Plaintiff, v. REDHAWK HAND CAR WASH; Naythan Properties LLC.; Aris Pepes; and Does 1 to 50, Inclusive, Defendants. 2012 WL 6630831


6. Plaintiff’s Points and Authorities in Support of Motion for Judgment Notwithstanding the Verdict Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes, and Does 1 to 50, Defendants. 2012 WL 6630779


7. Plaintiff Richard A. Powell’s Issue Brief re Defendant Naythan Properties LLC’s Special Jury Instruction No. 2 Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes; and Does 1 through





50, inclusive, Defendants. 2012 WL 6630777










































New Trial Denied by






Title Court Date











Jim McFarland, Mechtech Motorsports, Inc., and Jeanne McFarland’s Trial Brief THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:




2012 WL 7634632 (Cal.Super.) (Trial Filing) Superior Court of California,





No. 37-2011-00055785-CU-BC-NC. September 28, 2012.

Jim McFarland, Mechtech Motorsports, Inc., and Jeanne McFarland’s Trial Brief

Kenneth N. Greenfield, Esq. (State Bar No. 105721), Alexandra N. Selfridge, Esq. (State Bar No. 247063), Law Offices of Kenneth N. Greenfield, 16516 Bernardo Center Drive, Suite 210, San Diego, CA 92128, (858) 675-0301, Fax (858) 675-0319, Attorneys for Defendants/Cross-Complainants Jim McFarland and Mechtech Motorsports, Inc. and Cross-Defendant Jeanne McFarland.


Dept: N-28 Date Filed: June 28, 2011 Trial Call: October 5, 2012 Trial: October 29, 2012

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................................................................................

iii

I. IDENTIFICATION OF THE PARTIES ........................................................................................................................

1

II. INTRODUCTION ................................................................................................................................................................

1

III. STATEMENT OF RELEVANT FACTS ...................................................................................................................

1

A. History of MechTech Motorsports .................................................................................................................................

1

B. The Sale of MechTech Motorsports ...............................................................................................................................

2

C. The Assignee of the Buyer Is Designated as All Mechtech, LLC .......................................................................

3

D. After the Sale of MechTech Motorsports .....................................................................................................................

3

IV. ISSUES OF LAW ...............................................................................................................................................................

5

A. William Dunivan Is Liable as an Individual to Jim McFarland and MechTech Motorsports, Inc ........... 5



B. Mr. Dunivan and All Mechtech, LLC Breached the Sale Contract .....................................................................

7

C. Mr. Dunivan and All Mechtech, LLC Breached the Assignment of Lease ......................................................

7

D. Mr. Dunivan and All Mechtech, LLC Committed Fraud .......................................................................................

7

E. Jim McFarland and MechTech Motorsports, Inc. Are Entitled to Indemnity from Mr. Dunivan and All Mechtech, LLC for those Attorney Fees and Costs Incurred in Defending against Plaintiffs Lawsuit .............................................................................................................................................................................................................

9

F. Mr. Dunivan and All Mechtech, LLC Will Not Prevail on Their Causes of Action against Mr. and Mrs. McFarland and MechTech Motorsports, Inc. .........................................................................................................

9

1. Mr. Dunivan Is Not a Real Party in Interest and Lacks Standing to Bring an Action Arising out of the Sale Contract .........................................................................................................................................................................

10

2. Mr. Dunivan and All Mechtech, LLC Cannot State a Cause of Action against the McFarlands as Individuals .....................................................................................................................................................................................

10

3. Mr. Dunivan and All Mechtech, LLC Waived Their Right to Challenge any alleged Defects regarding MechTech Motorsports’ Financial Condition and Equipment ...............................................................

11

4. Mr. Dunivan and All Mechtech, LLC Are Not Liable for the Past Debts or Liabilities of the Seller ......

11

5. The McFarlands Did Not Engage in any Past “Illegal Practices” .........................................................................

12

V. CONCLUSION .....................................................................................................................................................................

12


CASES Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825 ...............................................

6

Automotriz De Golfo De California S.A. De C. V v. Resnick (1957) 47 Cal.2d 792 ..................................

6

Diamond Woodworks, Inc. v. Argonaut Ins. Co. (2003) 109 Cal.App.4th 1020 .........................................

8

National Reserve Co. of America v. Metropolitan Trust Co. of Cal. (1941) 17 Cal.2d 827 ...................

10

Purcell v. Colonial Ins. Co. (1971) 20 Cal.App.3d 807 .......................................................................................

10

Roberts v. El Cajon Motors, Inc. (2011) 200 Cal.App.4th 832 .........................................................................

11

Roman Catholic Archbishop v. Superior Court (1971) 15 Cal.App.3d 405 .................................................

5

Simon v. San Paolo U.S. Holding Co. Inc. (2005) 35 Cal.4th 1159 ................................................................

8

Stark v. Coker (1942) 20 Cal.2d 839 ..........................................................................................................................

5, 6

Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18 ..................................................................................................... 8



STATUTES California Code of Civil Procedure section 368.5 .................................................................................................

10

California Code of Civil Procedure section 1060 ...................................................................................................

9

California Corporations Code section 17101 ...........................................................................................................

5

TO THE COURT AND TO ALL INTERESTED PARTIES: Cross-Complainants/Cross-Defendants Jim McFarland and MechTech Motorsports, Inc., and Cross-Defendant Jeanne McFarland hereby submit the following Trial Brief.

I. IDENTIFICATION OF THE PARTIES

Cross-Complainants/Cross-Defendants Jim McFarland and MechTech Motorsports, Inc. and Cross-Defendant Jeanne McFarland are represented by Kenneth N. Greenfield, Esq. and Alexandra N. Selfridge, Esq. of the Law Offices of Kenneth N. Greenfield. Cross-Defendants/Cross-Complainants William R. Dunivan and All Mechtech, LLC are represented by Cynthia L. Stratton, Esq. of Stratton & Green, ALC.

II. INTRODUCTION This dispute arises out of a business deal gone wrong-the sale of MechTech Motorsports, a high performance automotive business. After successfully running MechTech Motorsports for more than 25 years, Jim and Jeanne McFarland decided to pursue a new business venture. The McFarlands intended to live off of the proceeds of the sale of MechTech Motorsports until their new business began turning a profit. In 2010, they sold MechTech Motorsports to William Dunivan and All Mechtech, LLC, turned the business over to the buyers, and began to pursue their dream. In exchange, the buyers simply paid a fraction of the agreed-upon purchase price, refused to pay the rest, and abandoned the business only a few short months after the purchase. As a result, the McFarlands were financially ruined. By way of this litigation, the McFarlands hope to receive the benefit of the 2010 bargain.

III. STATEMENT OF RELEVANT FACTS

A. History of MechTech Motorsports.

Jim McFarland was the manager and CEO of MechTech Motorsports, Inc. His wife, Jeanne McFarland, was the President of the company. Mark Shepard began working for MechTech Motorsports, Inc. in 1997. In 2010, he had been employed by the company for more than a decade, was a key employee, and was the shop’s lead mechanic and manager.

B. The Sale of MechTech Motorsports.

In July 2010, MechTech Motorsports, Inc. agreed to sell to “William R. Dunivan or assignee ... all of the equipment, fixtures, goodwill, inventory, trademarks, trade names, web sites, telephone numbers, lease and all other intangible and tangible assets of that certain BUSINESS known as MechTech Motorsports” in exchange for $174,500. The sale was governed by the



Earnest Money Receipt and Offer for Purchase and Sale of Assets, and Counter Offer (“the Sale Contract”). This was an asset sale, and the buyer did not purchase the debts or liabilities of the seller. The Sale Contract contained the following indemnification clause:

SELLER does hereby indemnify PURCHASER and shall hold and save harmless from and against all debts, claims, actions, causes of action, losses, damages and attorney’s fees now existing or that may hereafter arise from or grow out of SELLER’S past operation and ownership of the BUSINESS, either directly or indirectly, excepting those liabilities being assumed by PURCHASER hereunder, if any. PURCHASER does hereby indemnify SELLER and shall hold and save harmless from and against all debts, claims, actions, causes of action, losses, damages and attorney’s fees that may hereafter arise from or grow out of PURCHASER’S operation and ownership of the BUSINESS from the closing date forward into the future.

From June 2010 to November 2010, the buyer represented to MechTech Motorsports, Inc. that he would pay the full purchase price of the business, and would thereafter run the business. On or about October 1, 2010, the buyer further represented to both MechTech Motorsports, Inc. and Mr. McFarland that he would assume, be bound by, and perform all obligations of the Lessee pursuant to the seller’s Lease with its landlord, the Wyne-Snow Industrial Park. On August 28, 2010, Mr. Dunivan made an initial deposit toward the purchase of the business. On October 29, 2010, Mr. Dunivan and All Mechtech, LLC modified the Sale Contract by way of a Note Secured by Security Agreement, promising to pay the remaining $132,250.50 owed under the Sale Contract no later than December 29, 2010. Thereafter, the buyer was assigned and agreed to assume Mr. McFarland and MechTech Motorsports, Inc.’s lease with the Wyne-Snow Industrial Park. Mr. Dunivan had the duty and the opportunity to conduct due diligence with respect to the financial condition, profitability, and sustainability of the business, as well as with respect to the fixtures, furnishings, equipment, and physical facility of MechTech Motorsports. Satisfied with the results of the investigation, Mr. Dunivan signed a Due Diligence Contingency Removal form no less than four times. By way of that document, Mr. Dunivan expressly agreed as follows: I have had access to any and all records and information relating to this business and, to the extent so desired, I have reviewed this information with my professional advisors. After careful consideration and evaluation, I hereby remove any and all contingencies related to my review of the financial records, operational records, and the business history and prospects of the company. I have had access to review and inspect the fixtures, furnishings, and equipment of this business. I have also had the opportunity to review and inspect the overall appearance and functionality of the entire premises, and to the extent so desired, have consulted with professionals within this field. I understand that the SELLER must continue to maintain everything in working order up until the close of escrow. Therefore, I hereby remove any and all contingencies related to my review and inspection of the fixtures, furnishings, equipment, and physical facility. On September 30, 2010, the State of California’s Employment Development Department released the buyer “of liability for any unpaid contributions, withholding taxes, penalties, and interest due pursuant to the CUIC [California Unemployment Insurance Code] for all periods to and including the closing/acquisition date.”

C. The Assignee of the Buyer Is Designated as All Mechtech, LLC.

On September 1, 2010, Mr. Dunivan designated All Mechtech, LLC as the assignee of the buyer in connection with the Sale Contract. The Assignment was made by way of Amended Escrow Instructions stating, “It has been determined that the assignee of the buyer will be All Mechtech, LLC, a Texas limited liability company.” The next day, September 2, 2010, Mr. Dunivan created the LLC. Nevertheless, over the following weeks and months, Mr. Dunivan used his personal checking account for the LLC’s business expenses.



D. After the Sale of MechTech Motorsports.

After the close of escrow, Mr. McFarland attempted to train Mr. Dunivan to run the business on his own. During the first weeks after the sale, Mr. Dunivan showed up to the shop late, and went out of town, making it impossible for Mr. McFarland to train him. Approximately two weeks after taking possession of the business, Mr. Dunivan apparently decided that he no longer wanted the business, and he began attempting to “give it back.” During the short time that Mr. Dunivan and All Mechtech, LLC ran the business, they failed to take proper actions to further the success of MechTech Motorsports. For example, Mr. Dunivan never actually obtained a California Resale Certificate or California Seller’s Permit in connection with the business. All Mechtech, LLC did not even become certified to do business in California until March 16, 2012. The buyers’ efforts to increase the profits of the business were limited to Mr. Dunivan simply showing up for work. The buyers did not take any steps to market the business by sending out reminders or cards or announcements to the customers in the business computer database; nor were mailers or postcards sent to potential clients; nor were mailers or postcards sent out advertising specials on high-performance products and services. In addition, the LLC was seriously undercapitalized. Mr. Dunivan and All Mechtech, LLC failed to make their final payment of $132,250.50 pursuant to the Sale Contract. Despite having a stated net worth of approximately $5 million, Mr. Dunivan did not pay the full amount of the purchase price of the business before the close of escrow, or ever. Despite having excellent credit, Mr. Dunivan elected not to finance the purchase of the business. Mr. Dunivan intended to finance the purchase of the business with the proceeds of the sale of some real property in Texas. He was paid between $750,000 and $1,000,000 in connection with the sale of that property in late 2010. Rather than use any of those funds to pay the remainder of the purchase price of MechTech Motorsports, Mr. Dunivan simply paid a fraction of the purchase price, and never paid the rest. Mr. Dunivan and All Mechtech, LLC abandoned possession of the property where the business was located only a few short months after purchasing the business. Currently, there is no money in All Mechtech, LLC’s bank account, and the LLC does not own any assets. It is simply a shell.

IV. ISSUES OF LAW

A. William Dunivan Is Liable as an Individual to Jim McFarland and MechTech Motorsports, Inc.

Although Mr. Dunivan assigned his rights under the Sale Contract to All Mechtech, LLC, he cannot escape liability for his own wrongs, because he should be subjected to “alter ego” liability for the actions of the LLC.1 Mr. McFarland and MechTech Motorsports, Inc. have pleaded that “All Mechtech, LLC was the alter ego of William R. Dunivan, and vice versa, and that the operations of All Mechtech, LLC were so closely tied to the operations of William R. Dunivan that they should be treated as a single entity under the law.” The issue of whether All Mechtech, LLC’s corporate veil should be “pierced” is one of fact “particularly within the province of the trial court” (i.e., the issue is for the judge to decide). (Stark v. Coker (1942) 20 Cal.2d 839, 846 [129 P.2d 390].) 1

Mr. Dunivan claims that he may enforce his individual rights under the Sale Contract by suing the McFarlands for their alleged violation of that agreement. At the same time, Mr. Dunivan claims that he is insulated from any liability arising out of that very same contract by reason of the Assignment. This is a non sequitur - Mr. Dunivan cannot have it both ways. For the reasons set forth in detail in the McFarlands’ Motion in Limine No. 4, any evidence regarding Mr. Dunivan’s creative interpretation of the Assignment is inadmissible pursuant to the parol evidence rule.

A corporate identity may be disregarded where an abuse of the corporate privilege justifies holding the equitable ownership of a corporate entity liable for the actions of the corporation. (Roman Catholic Archbishop v. Superior Court (1971) 15 Cal.App.3d 405, 411 [93 Cal.Rptr. 338].) In California, limited liability companies are held to a nearly identical standard, as set forth in Corporations Code, section 17101:

A member of a limited liability company shall be subject to liability under the common law governing alter ego liability, and shall also be personally liable under a judgment of a court or for any debt, obligation, or liability of the limited liability company, whether that liability or obligation arises in contract, tort, or otherwise, under the same or similar circumstances and to the same extent as a



shareholder of a corporation may be personally liable for any debt, obligation, or liability of the corporation .... (Corp. Code, § 17101.)

The basic rule stated by our Supreme Court as a guide in the application of this doctrine is as follows: The two requirements are, (1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist, and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow. (Automotriz Del Golfo De California S.A. De C.v. v. Resnick (1957) 47 Cal.2d 792, 796 [306 P.2d 1].) With respect to the second requirement, it is sufficient that it appear that recognition of the acts as those of a corporation only will produce inequitable results. (Stark v. Coker (1942) 20 Cal.2d 839, 846 [129 P.2d 390].) The court in Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 838 [17 Cal.Rptr. 291] reviewed a number of cases discussing “alter ego” liability, and summarized a variety of factors which are pertinent to the trial court’s determination:

Commingling of funds and other assets, failure to segregate funds of the separate entities... [Citations]; ... the holding out by an individual that he is personally liable for the debts of the corporation [Citations]; ... sole ownership of all of the stock in a corporation by one individual or the members of a family [Citations]; the use of the same office or business location;... the failure to adequately capitalize a corporation; the total absence of corporate assets, and undercapitalization [Citations]; the use of a corporation as a mere shell, instrumentality or conduit for a single venture or the business of an individual or another corporation [Citations];... the diversion of assets from a corporation by or to a stockholder or other person or entity, to the detriment of creditors, or the manipulation of assets and liabilities between entities so as to concentrate the assets in one and the liabilities in another [Citations]; the contracting with another with intent to avoid performance by use of a corporate entity as a shield against personal liability, or the use of a corporation as a subterfuge of illegal transactions [Citations]; and the formation and use of a corporation to transfer to it the existing liability of another person or entity [Citations].” (Internal citations omitted.)

(Associated Vendors, surpa, at p. 838.) Mr. Dunivan treated All Mechtech, LLC as his “alter ego” rather than as a separate entity. The LLC was undercapitalized. Mr. Dunivan commingled his personal funds with those of the LLC by using his personal checking account for the LLC’s business expenses. In addition, he signed multiple documents related to the sale of the business as an individual. Although the LLC was not actually formed until September 2, 2010, the LLC was designated as the buyer of MechTech Motorsports on September 1, 2010. Although it was conducting business in California in 2010 and 2011, the LLC was not registered to conduct such business until March 16, 2012. Mr. Dunivan entered into a contract to purchase MechTech Motorsports in July 2010, and a few months later on September 1, 2010, transferred the business to a mere “shell.” Mr. Dunivan actively sought to avoid payment of the remaining debt by use of the LLC as a shield against personal liability. Further, it would “sanction a fraud or promote an injustice” to uphold the corporate entity and allow Mr. Dunivan to escape personal liability for the debts of the LLC. Currently, there is no money in All Mechtech, LLC’s bank account, and the LLC does not own any assets. The evidence at trial will show that the corporate veil should be “pierced,” and the distinction between the LLC and Mr. Dunivan dissolved, so that this Court may find Mr. Dunivan liable as an individual, despite the existence of the LLC.

B. Mr. Dunivan and All Mechtech, LLC Breached the Sale Contract.

By way of the Sale Contract, Mr. Dunivan and All Mechtech, LLC agreed to pay MechTech Motorsports, Inc. the remaining $132,250.50 of the purchase price. Further, the buyers agreed to pay that amount no later than 60 days after the close of escrow, which was December 31, 2010, at which point in time, interest in the amount of 15 percent began to accrue. To date, the balance of the purchase price and the interest thereon has yet to be paid.



C. Mr. Dunivan and All Mechtech, LLC Breached the Assignment of Lease.

By way of the Assignment of Lease, Mr. Dunivan and All Mechtech, LLC agreed to be bound by and perform all obligations of the lessee pursuant to the Lease arising on or after the date of the Assignment, and to abide by all of the terms, provisions, covenants, and conditions of the Lease. Instead, Mr. Dunivan and All Mechtech, LLC abandoned the subject property and failed and refused to pay rent. As a direct result of the buyers’ failure to comply with the terms of the Assignment of Lease, Mr. McFarland and MechTech Motorsports, Inc. were forced to incur fees and costs to defend against Plaintiff lessor’s lawsuit. Although Plaintiff has recently dismissed its action against Mr. McFarland and MechTech Motorsports, Inc. without prejudice, Mr. McFarland and MechTech Motorsports, Inc. were damaged financially.

D. Mr. Dunivan and All Mechtech, LLC Committed Fraud.

Mr. Dunivan and All Mechtech, LLC represented to MechTech Motorsports, Inc. that they would pay the full purchase price of the business, and would thereafter run the business. In addition, the buyers represented to both MechTech Motorsports, Inc. and Jim McFarland that they would assume and perform all obligations under the Lease arising on or after the date of the Assignment. Mr. Dunivan and All Mechtech, LLC represented that their intention to purchase MechTech Motorsports and to take over the Lease was unconditional. The representations made by Mr. Dunivan and All Mechtech, LLC were in fact false. The true facts, as evidenced in discovery, were that the buyers’ intention to purchase the business was conditional in nature-a conditional promise that the buyers kept secret. The true facts were that the buyers planned to “test” the business out by running it for a short time. If, and only if, they thought the business was worthy enough to keep after “testing it out,” would they actually pay the full purchase price, run the business thereafter, or perform any of the obligations of the Lessee under the Lease. The evidence will be clear in this regard. Of the $174,500 promised to the seller, only $42,249.50 was paid. Thus, the buyers obtained the business for $132,250.50 less than the contracted price. But for those misrepresentations, MechTech Motorsports, Inc. would never have sold the business to the buyers. But for those misrepresentations, MechTech Motorsports, Inc. and Jim McFarland would never have assigned the Lease to Cross-Defendants. Fraudulent intent may be proven by circumstantial evidence, such as the accused party’s hasty repudiation of its promise or its failure even to attempt performance. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30 [216 Cal.Rptr. 130, 702 P.2d 212]; Diamond Woodworks, Inc. v. Argonaut Ins. Co. (2003) 109 Cal.App.4th 1020, 1050 [135 Cal.Rptr.2d 736] [holding that an absolute unwillingness even to attempt a promised performance gives rise to an inference of fraudulent intent], overruled on other grounds in Simon v. San Paolo U.S. Holding Co. Inc. (2005) 35 Cal.4th 1159, 1182-1183 [29 Cal.Rptr.3d 379, 113 P.3d 63].) During the short time that Mr. Dunivan and All Mechtech, LLC ran the business, they failed to take proper actions to further MechTech Motorsports. The buyers took no steps to market the business. In addition, the buyers failed to obtain any of the permits and licenses required to run such a business, or even to qualify to do business in the State of California. In addition, the LLC was severely undercapitalized. This behavior is inconsistent with an intent to actually run the business. Mr. Dunivan and All Mechtech, LLC were perfectly capable of paying the full purchase price of the business before the close of escrow by way of Mr. Dunivan’s large net worth, by way of a business loan, or with the proceeds of the real property sale in Texas. Rather than use any of those options to pay the remainder of the purchase price of MechTech Motorsports, the buyers simply paid a fraction of the price. Mr. Dunivan was not concerned about backing out of the contract, because a few months after the purchase, he transferred the business to a mere “shell.” That way, he could avoid being “on the hook” personally for the remaining debt. Mr. Dunivan and All Mechtech, LLC never paid the remaining debt because their intention to do so was merely conditional.

E. Jim McFarland and MechTech Motorsports, Inc. Are Entitled to Indemnity from Mr. Dunivan and All Mechtech, LLC for those Attorney Fees and Costs Incurred in Defending against Plaintiff’s Lawsuit.

Although Plaintiff has dismissed its action against Mr. McFarland and MechTech Motorsports, Inc. without prejudice, Mr.



McFarland and MechTech Motorsports, Inc. were still compelled to incur fees and costs in connection with that lawsuit. As such, Mr. McFarland and MechTech Motorsports, Inc. seek a judicial declaration of their rights with respect to the indemnity clause of the Sale Contract. (Code Civ. Proc., § 1060.) Mr. Dunivan and All Mechtech, LLC expressly agreed to indemnify MechTech Motorsports, Inc. and, “hold and save harmless from and against all debts, claims, actions, causes of action, losses, damages and attorney’s fees that may hereafter arise from or grow out of PURCHASER’S operation and ownership of the BUSINESS from the closing date forward into the future.” As MechTech Motorsports, Inc. was acting for the benefit of Jim McFarland when it sold the business, and Mr. McFarland was a third party beneficiary of the Sale Contract, Mr. McFarland is also entitled to indemnification under the contractual indemnification clause. If the jury finds that Mr. Dunivan and All Mechtech, LLC breached the Sale Contract containing the indemnification clause, all findings of fact as to whether the buyers owe a duty to indemnify the seller have been made. The only remaining questions will be those of law, to be determined by this Court. For example, the question of whether the contractual indemnity clause creates a duty on the part of the buyers to indemnify both Mr. McFarland and MechTech Motorsports, Inc. is a question for this Court. Alternatively, in the event that Mr. McFarland is not entitled to express contractual indemnity, he is entitled to implied contractual indemnity. Because the claim at issue was a lawsuit by Plaintiff against both Mr. McFarland and All Mechtech, LLC, Mr. McFarland is entitled to implied contractual indemnity from the buyers. Although this is a question of fact for the jury, the McFarlands are willing to waive jury with respect to the issue of entitlement to implied contracted indemnity, and would submit the matter to the sound discretion of this Court.

F. Mr. Dunivan and All Mechtech, LLC Will Not Prevail on Their Causes of Action against Mr. and Mrs. McFarland and MechTech Motorsports, Inc.

The evidence at trial will show that Mr. Dunivan and All Mechtech, LLC’s claims against the McFarlands are without merit.

1. Mr. Dunivan Is Not a Real Party in Interest and Lacks Standing to Bring an Action Arising out of the Sale Contract.

Mr. Dunivan is not a real party in interest, and lacks standing to bring an action arising out of the Agreement because he assigned his rights under that contract, except for his Fraud cause of action, to All Mechtech, LLC. Once a claim has been assigned, the assignee is the owner and has the right to sue thereon. The assignee is the real party in interest and can maintain a lawsuit in its own name. (National Reserve Co. of America v. Metropolitan Trust Co. of Cal. (1941) 17 Cal.2d 827, 833 [112 P.2d 598], “National Reserve”; Code Civ. Proc., § 368.5.) Once the transfer has been made, however, the assignor is no longer the real party in interest, and therefore, lacks standing to sue. (Purcell v. Colonial Ins. Co. (1971) 20 Cal.App.3d 807, 814 [97 Cal.Rptr. 874].) The McFarlands therefore request a judicial determination that Mr. Dunivan lacks standing to bring any of his contractual claims against the McFarlands.

2. Mr. Dunivan and All Mechtech, LLC Cannot State a Cause of Action against the McFarlands as Individuals.

With the exception of their Fraud cause of action, Mr. Dunivan and All Mechtech, LLC cannot state a cause of action against the McFarlands as individuals because they did not enter into any contracts with the buyers in their individual capacities.

3. Mr. Dunivan and All Mechtech, LLC Waived Their Right to Challenge any alleged Defects regarding MechTech Motorsports’ Financial Condition and Equipment.

Mr. Dunivan had the duty and the opportunity to conduct due diligence regarding the financial records, operational records, business history and prospects, fixtures, furnishings, and equipment of the business. He agreed to rely solely on his personal



examination of those aspects of the business in deciding to purchase or value the business. He was satisfied with the results of his investigation, and Mr. Dunivan executed the Due Diligence Contingency Removal form. Mr. Dunivan and the LLC have waived their right to challenge any alleged defects with respect to the “financial records, operational records, and the business history and prospects of the company,” as well as with respect to the “fixtures, furnishings, equipment [of the business], and physical facility.” “While ‘waiver’ generally denotes the voluntary relinquishment of a known right, it can also refer to the loss of a right as a result of a party’s failure to perform an act it is required to perform, regardless of the party’s intent to relinquish the right.” (Roberts v. El Cajon Motors, Inc. (2011) 200 Cal.App.4th 832 [133 Cal.Rptr.3d 350].)

4. Mr. Dunivan and All Mechtech, LLC Are Not Liable for the Past Debts or Liabilities of the Seller.

Because Mr. Dunivan and All Mechtech, LLC did not purchase the corporate entity, they did not purchase its debts and liabilities. Any undisclosed debts remained the responsibility of MechTech Motorsports, Inc., and were not the responsibility of the buyers. Thus, it is unclear how exactly the buyers have been damaged by any debts or liabilities incurred before the sale of MechTech Motorsports. In the event that Mr. Dunivan and All Mechtech, LLC truly paid for debts or liabilities that were actually the responsibility of the seller, the Sale Contract provides a remedy. If the seller fails to disclose any debts against the business, the purchaser may pay the debt, and shall receive full credit against the balance owed to the seller on the Sale Contract. That is the proper remedy, not an action for breach of contract or fraud.

5. The McFarlands Did Not Engage in any Past “Illegal Practices.”

At the heart of Mr. Dunivan and All Mechtech, LLC’s case is their allegation that the seller engaged in prior, unlawful, business practices, such as paying Mark Shepard “under the table.” preparing fraudulent work orders, illegally installing catalytic converters, and illegally selling racing gas and nitrous oxide kits. None of these allegations are true. At the same time, even if all of said allegations were true, the buyers will be unable to present evidence as to how they were damaged by the allegedly illegal business practices.

V. CONCLUSION

It is the McFarlands’ heart-felt belief that they did nothing wrong in connection with the underlying business deal. To the contrary, the evidence will show that the McFarlands are the victims in this case. DATED: September 28, 2012 LAW OFFICES OF KENNETH N. GEENFIELD By: <<signature>> KENNETH N. GREENFIELD, ALEXANDRA N. SELFRIDGE, Attorneys for Cross-Complainants/Cross-Defendants, JIM McFARLAND and MECHTECH MOTORSPORTS, INC. and Cross-Defendant JEANNE McFARLAND

End of Document




Filings (26)






































16. Plaintiff’s Settlement Conference Statement THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an





individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. 2012 WL 7634650






















2012 WL 7985707






Direct History (1)










Title Court Date




















Jim McFarland, Mechtech Motorsports, Inc., and Jeanne McFarland’s Motion in Limine to Exclude Evidence of or Reference to the Moving Parties’ Alleged Violations of the Tax Code, Catalytic Converter Laws, Laws Governing the Installation of Nitrous Oxide Kits, or Laws Governing the Sale of Racing Fuel THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:










Jim McFarland, Mechtech Motorsports, Inc., and Jeanne McFarland’s Motion in Limine to Exclude Evidence of or Reference to the Moving Parties’ Alleged Violations of the Tax Code, Catalytic Converter Laws, Laws Governing the

Installation of Nitrous Oxide Kits, or Laws Governing the Sale of Racing Fuel

Kenneth N. Greenfield, Esq. (State Bar No. 105721), Alexandra N. Selfridge, Esq. (State Bar No. 247063), Law Offices of Kenneth N. Greenfield, 16516 Bernardo Center Drive, Suite 210, San Diego, CA 92128, (858) 675-0301, Fax (858) 675-0319, Attorneys for Cross-Complainants/Cross-Defendants Jim McFarland and Mechtech Motorsports, Inc. and Cross-Defendant Jeanne McFarland.


NO. 2 OF 4 Dept: N-28 Date Filed: June 28, 2011 Trial Call: October 5, 2012 Trial Date: October 29, 2012 PLEASE TAKE NOTICE that Cross-Complainants/Cross-Defendants Jim McFarland and MechTech Motorsports, Inc. and Cross-Defendant Jeanne McFarland (hereinafter, “the McFarlands”) hereby move this Court for an Order to exclude or limit evidence of, reference to, or allegations by Cross-Defendants/Cross-Complainants William Dunivan and All Mechtech, LLC, and their attorneys concerning the McFarlands’ alleged violations of the tax code, catalytic converter laws, laws governing the installation of nitrous oxide kits, or laws governing the sale of racing fuel. This Motion is made on the grounds that Mr. Dunivan and All Mechtech, LLC have no personal knowledge regarding the McFarlands’ alleged violations of the tax code, catalytic converter laws, laws governing the installation of nitrous oxide kits. or laws governing the sale of racing fuel. Further, they have not designated an expert witness to testify regarding said violations. Mr. Dunivan has admitted that such matters are the subject of expert testimony, and that he is not an expert witness with respect to those matters. Furthermore, the question of whether the McFarlands violated the tax code, catalytic converter laws, or laws governing the sale of racing fuel is a question of law rather than fact. Finally, such information is impermissible evidence of the McFarlands’ alleged prior bad acts. As such, any attempt to convey this information to the jury would be highly improper and prejudicial to the McFarlands, even if the Court were to sustain an objection and instruct the jury not to consider such facts. Further, allowing evidence relating to alleged violations of the tax code, catalytic converter laws, laws governing the installation of nitrous oxide kits, or laws governing the sale of racing gas by the McFarlands would necessitate undue consumption of time, confuse the issues, and mislead the jury.



This Motion is made under the provisions of Evidence Code sections 352, 702, 720, 803, and 1101, and will be based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the Declaration of Alexandra N. Selfridge and attached exhibits, all pleadings and papers filed in this matter, all matters which this Court must or may judicially notice, and any other oral and documentary evidence as may be presented at the hearing of this Motion. DATED: September 28, 2012 LAW OFFICES OF KENNETH N. GREENFIELD By: <<signature>> KENNETH N. GREENFIELD, ALEXANDRA N. SELFRIDGE Attorneys for Cross-Complainants/Cross-Defendants, JIM McFARLAND and MECHTECH MOTORSPORTS, INC. and Cross-Defendant JEANNE McFARLAND


The McFarlands hereby submit the following Memorandum of Points and Authorities in support of their Motion in Limine to exclude or limit evidence of, reference to, or allegations by Cross-Defendants/Cross-Complainants William Dunivan and All Mechtech, LLC, and their attorneys concerning the McFarlands’ alleged violations of the tax code, catalytic converter laws, laws governing the installation of nitrous oxide kits, or laws governing the sale of racing fuel.

I. STATEMENT OF FACTS

This case is about a business deal that went wrong. In 2010, MechTech Motorsports, Inc. owned a high performance automotive business known as MechTech Motorsports. Jim McFarland was the CEO of MechTech Motorsports, Inc. and his wife, Jeanne McFarland, was the president of the company. In July 2010, MechTech Motorsports, Inc. agreed to sell the business to “William R. Dunivan or assignee.” All Mechtech, LLC was later designated as the buyer. The McFarlands turned MechTech Motorsports over to Mr. Dunivan, and he began to run the business on his own. Shortly thereafter, Mr. Dunivan and All Mechtech, LLC refused to pay the full purchase price and abandoned the business. The instant litigation followed. In an effort to bolster their allegations against the McFarlands, Mr. Dunivan and All Mechtech, LLC claim that, while the McFarlands were running the business, they violated the tax code, catalytic converter laws, laws governing the installation of nitrous oxide kits, and laws governing the sale of racing gas. During discovery, Mr. Dunivan was unable to identify the specific catalytic converter laws or laws governing the installation of nitrous oxide kits he contends were violated by the McFarlands, claiming that such information calls for expert testimony. (Decl. Selfridge, ¶ 3; Exhibit 1, p. 1.2.) During his deposition, Mr. Dunivan admitted that he had “no idea” whether a company or business needs to have a license to sell racing gas. Furthermore, Mr. Dunivan was unable to identify the specific laws governing the sale of racing gas he contends were violated by the McFarlands, claiming that such information calls for expert testimony. (Decl. Selfridge, ¶¶ 3, 4; Exhibit 1, p. 1.2; Exhibit 2, pp. 166:13-167:15.) Moreover, Mr. Dunivan was unable to identify the specific provisions of the IRS code he contends were violated by the McFarlands, claiming that such information calls for expert testimony. (Exhibit 1, p. 1.2.) Nevertheless, Mr. Dunivan and All Mechtech, LLC have not designated an expert witness to testify regarding any of those topics.

II. STATEMENT OF LAW



Trial courts possess the inherent power to grant motions in limine; these motions are a well-established method of excluding inadmissible evidence. (Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451 [238 Cal.Rptr. 339].) 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.” (Evid. Code, § 352.) Unless he has been established as an expert, “the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.” (Evid. Code, § 702.) In order to qualify as an expert, a witness must have “special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720.) “The court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion.” (Evid. Code, § 803.) “[E]vidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101.)

III. ARGUMENT

A. MR. DUNIVAN LACKS PERSONAL KNOWLEDGE AS TO WHETHER THE McFARLANDS VIOLATED THE TAX CODE, CATALYTIC CONVERTER LAWS, OR LAWS GOVERNING THE SALE OF RACING FUEL.

A witness’s testimony concerning a particular matter is inadmissible unless he has personal knowledge of that matter. (Evid. Code, § 702.) In order for Mr. Dunivan, or any other witness, to testify regarding the issues of violations of the tax code, catalytic converter laws, or laws governing the sale of racing fuel, he must either have personal knowledge of them, or be established as an expert. (Evid. Code, §§ 702, 801.) Personal knowledge “means a present recollection of an impression derived from the exercise of the witness’ own senses.” (Law Revision Comments to Evid. Code, § 702.) Mr. Dunivan admits that he lacks personal knowledge regarding which catalytic converter laws or laws governing the installation of nitrous oxide kits the McFarlands supposedly violated. He concedes that he lacks knowledge regarding whether a company or business requires a license to sell racing gas, and was unable to identify the laws governing the sale of racing gas he contends were violated by the McFarlands. Finally, Mr. Dunivan acknowledges that he lacks sufficient knowledge to identify those provisions of the IRS code he contends were violated by the McFarlands. Mr. Dunivan cannot be permitted to testify regarding the issues of violations of the tax code, catalytic converter laws, laws governing the installation of nitrous oxide kits, or laws governing the sale of racing fuel, because he lacks personal knowledge regarding those subjects.

B. THIS EVIDENCE IS THE SUBJECT OF EXPERT TESTIMONY, AND PLAINTIFF, MR. DUNIVAN, AND ALL MECHTECH, LLC HAVE NO SUCH EXPERT WITNESS.

It is anticipated that Mr. Dunivan and All Mechtech, LLC will attempt to present evidence that, prior to the sale of the business, the McFarlands violated the tax code, catalytic converter laws, laws governing the installation of nitrous oxide kits, and laws governing the sale of racing fuel. Such matters are the subject of expert testimony. Expert testimony is required whenever proof of an element of a cause of action or defense calls for testimony that is outside an ordinary person’s common knowledge. (Evid. Code, § 801, subd. (a); see also, People v. McDonald (1984) 37 Cal.3d 351, 367 [208 Cal.Rptr. 236, 690 P.2d 709], overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914 [98 Cal.Rtpr.2d 431, 4 P.3d 265].) Furthermore, Mr. Dunivan and All Mechtech, LLC admit that these issues are the subject of expert testimony. In fact, they have used this argument to avoid providing complete responses to Jim McFarland’s written discovery in this case. (Exhibit 1, p. 1.2.)



C. A DETERMINATION OF WHETHER THE McFARLANDS VIOLATED THE TAX CODE, CATALYTIC CONVERTER LAWS, LAWS GOVERNING THE INSTALLATION OF NITROUS OXIDE KITS, OR LAWS GOVERNING THE SALE OF RACING FUEL IS A QUESTION OF LAW, NOT FACT.

Such testimony and evidence must be excluded because it involves the proper interpretation of statutes or regulations. All questions of law are to be decided by the Court. (Evid. Code, § 310, subd. (a).) Questions concerning the construction of constitutional or statutory provisions are questions of law, not fact. (Evid. Code, § 310, subd. (a); Bakersfield Community Hosp. v. Department of Health (1977) 77 Cal.App.3d 193, 196 [142 Cal.Rptr. 773].) In addition, there exists a prohibition against the admission of an expert’s opinion on a question of law. (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178 [82 Cal.Rptr.2d 162]; Howard Jarvis Taxpayers Assn. v. City of Riverside (1999) 73 Cal.App.4th 679, 689 [86 Cal.Rptr.2d 592].) It cannot be determined whether the McFarlands did, in fact, violate the tax code, catalytic converter laws, laws governing the installation of nitrous oxide kits, and laws governing the sale of racing fuel unless the proper interpretation of the relevant statutes and regulations is also determined. These questions must be decided by the court and not the jury. It is error to submit an issue of law to the jury as a question of fact. (Martin v. Hall (1971) 20 Cal.App.3d 414, 421 [97 Cal.Rptr. 730]; 7 Witkin, Cal. Proc. (5th ed. 2008) Trial, § 81, p. 107.)

D. EVIDENCE OF THE McFARLANDS’ ALLEGED PRIOR BAD ACTS IS INADMISSIBLE CHARACTER EVIDENCE.

Evidence of a person’s character or a trait of his or her character is inadmissible when offered to prove his or her conduct on a specified occasion. (Evid. Code, § 1101.) Mr. Dunivan and All Mechtech, LLC will attempt to introduce this evidence to show that the McFarlands were dishonest people who do not respect the law, and who therefore must have committed fraud in the instant case. The purpose of the evidence is simply to disparage the McFarlands, to place them in a negative light, and to demonstrate that they were dishonest in their dealings with Mr. Dunivan. Accordingly, such evidence is impermissible character evidence and should be excluded pursuant to Evidence Code section 1101.

E. EVIDENCE CONCERNING THE McFARLANDS’ ALLEGED VIOLATIONS OF THE TAX CODE, CATALYTIC CONVERTER LAWS, LAWS GOVERNING THE INSTALLATION OF NITROUS OXIDE KITS, AND LAWS GOVERNING THE SALE OF RACING FUEL IS MORE PREJUDICIAL THAN PROBATIVE.

Any discussion of the McFarlands’ alleged violations of the tax code, catalytic converter laws, or laws governing the sale of racing fuel will only serve to prejudice the McFarlands, and to provide evidence of their allegedly dishonest character. These issues are outside the scope of Mr. Dunivan’s personal knowledge, and are arguably the subject of expert testimony. Alternatively, these issues are questions of law, not fact. As such, reference to these matters will confuse the issues and mislead the jury. In addition, evidence of each purported instance that the McFarlands violated the tax code, catalytic converter laws, laws governing the installation of nitrous oxide kits, or laws governing the sale of racing fuel will cause an undue consumption of valuable court time and a waste of judicial resources. (Gouskos v. Aptos Village Garage, Inc. (2001) 94 Cal.App.4th 754, 760-762 [114 Cal.Rptr.2d 558] [holding that evidence that defendant allegedly did not follow the law regarding repair estimates and billing practices was properly excluded as unduly time consuming and confusing].) Accordingly, the Court must exclude this evidence at trial.

IV. CONCLUSION

For the foregoing reasons, the McFarlands respectfully request that this Court issue an Order excluding any and all evidence, references to evidence, testimony or argument by Cross-Defendants/Cross-Complainants William Dunivan and All Mechtech, LLC, and their attorneys concerning the McFarlands’ alleged violations of the tax code, catalytic converter laws, laws governing the installation of nitrous oxide kits, or laws governing the sale of racing fuel.



DATED: September 28, 2012 LAW OFFICES OF KENNETH N. GREENFIELD By: <<signature>> KENNETH N. GREENFIELD, ALEXANDRA N. SELFRIDGE Attorneys for Cross-Complainants/Cross-Defendants, JIM McFARLAND and MECHTECH MOTORSPORTS, INC. and Cross-Defendant JEANNE McFARLAND

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Jim McFarland, Mechtech Motorsports, Inc., and Jeanne McFarland’s Motion in Limine to Exclude Expert Testimony by Tony Yip Regarding the Moving Parties; “Alter Ego” Allegations THE WYNE-SNOW INDUSTRIAL PARK, Plaintiff, v. MECHTECH MOTORSPORTS, INC.; Jim McFarland, an individual; All Mechtech, LLC; William R. Dunivan, an individual; and Does 1 through 20, inclusive, Defendants, And All Related Cross-Actions. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:










Jim McFarland, Mechtech Motorsports, Inc., and Jeanne McFarland’s Motion in Limine to Exclude Expert Testimony by Tony Yip Regarding the Moving Parties; “Alter Ego” Allegations

Kenneth N. Greenfield, Esq. (State Bar No. 105721), Alexandra N. Selfridge, Esq. (State Bar No. 247063), Law Offices of Kenneth N. Greenfield, 16516 Bernardo Center Drive, Suite 210, San Diego, CA 92128, (858) 675-0301, Fax (858) 675-0319, [email protected], Attorneys for Cross-Complainants/Cross-Defendants Jim McFarland and Mechtech Motorsports, Inc. and Cross-Defendant Jeanne McFarland.


NO. 3 OF 4 Dept: N-28 Date Filed: June 28, 2011 Trial Call: October 5, 2012 Trial Date: October 29, 2012 PLEASE TAKE NOTICE that Cross-Complainants/Cross-Defendants Jim McFarland and MechTech Motorsports, Inc. and Cross-Defendant Jeanne McFarland (hereinafter, “the McFarlands”) hereby move this Court for an Order to exclude or limit expert opinion testimony by Tony Yip regarding the moving parties’ “alter ego” allegations, including but not limited to, whether Cross-Defendants/Cross-Complainants William Dunivan and/or All Mechtech, LLC commingled funds. This Motion is made on the grounds that such opinion testimony goes beyond the scope of Mr. Yip’s expert witness designation. Further, such testimony would only unnecessarily prolong trial and be prejudicial to the McFarlands, even if the Court were to sustain an objection and instruct the jury not to consider such facts. This Motion is made under the provisions of Evidence Code section 352 and Code of Civil Procedure section 2034.260, and will be based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the Declaration of Alexandra N. Selfridge and attached exhibit, all pleadings and papers filed in this matter, all matters which this Court must or may judicially notice, and any other oral and documentary evidence as may be presented at the hearing of this Motion. DATED: September 28, 2012 LAW OFFICES OF KENNETH N. GREENFIELD



By: <<signature>> KENNETH N. GREENFIELD, ALEXANDRA N. SELFRIDGE Attorneys for Cross-Complainants/Cross-Defendants, JIM McFARLAND and MECHTECH MOTORSPORTS, INC. and Cross-Defendant JEANNE McFARLAND


The McFarlands hereby submit the following Memorandum of Points and Authorities in support of their Motion in Limine to exclude or limit expert opinion testimony by Tony Yip regarding the moving parties’ “alter ego” allegations, including but not limited to, whether Cross-Defendants/Cross-Complainants William Dunivan and/or All Mechtech, LLC commingled funds.

I. STATEMENT OF RELEVANT FACTS

In July 2010, MechTech Motorsports, Inc. agreed to sell to “William R. Dunivan or assignee ... all of the equipment, fixtures, goodwill, inventory, trademarks, trade names, web sites, telephone numbers, lease and all other intangible and tangible assets of that certain BUSINESS known as MechTech Motorsports” in exchange for $174,500. All Mechtech, LLC was later designated as the buyer. After the business was turned over to Mr. Dunivan, he began to run MechTech Motorsports on his own. Shortly thereafter, Mr. Dunivan and All Mechtech, LLC refused to pay the full purchase price and abandoned the business. The instant litigation followed. It is the McFarlands’ position that, although Mr. Dunivan assigned his rights under the contract to All Mechtech, LLC, he cannot escape liability for his breach of that contract because he is subject to “alter ego” liability. One of the many bases for said liability is the fact that Mr. Dunivan commingled his personal funds with those of the LLC by using his personal checking account for the LLC’s business expenses. Mr. Dunivan and All Mechtech, LLC designated Tony Yip as their expert witness regarding business valuation and damages. He was designated to testify regarding “valuation of Mechtech Motorsports, evaluation of all economic and/or accounting information and data regarding Mechtech Motorsports, and economic damage computation.” (Decl. Selfridge, ¶ 3; Exhibit 1, p. 1.4.) He was not designated to testify regarding the McFarlands’ “alter ego” allegations, or as to whether Mr. Dunivan commingled his personal funds with those of the LLC. Despite the limited designation, it is anticipated that Mr. Dunivan and All Mechtech, LLC will attempt to elicit expert opinion testimony from Mr. Yip in connection with the McFarlands’ “alter ego” allegations, specifically with respect to whether Mr. Dunivan and All Mechtech, LLC commingled funds.

II. STATEMENT OF LAW

Trial courts possess the inherent power to grant motions in limine; these motions are a well-established method of excluding inadmissible evidence. (Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451 [238 Cal.Rptr. 339].) 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.” (Evid. Code, § 352.)

III. ARGUMENT

A. SUCH EXPERT OPINION TESTIMONY GOES BEYOND THE SCOPE OF TONY YIP’S EXPERT WITNESS



DESIGNATION.

The designation of expert witnesses is governed by Code of Civil Procedure section 2034.010, et. seq. The specific requirements of the expert designation are set forth by Code of Civil Procedure section 2034.260, which requires that:

(a) All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand... (c) If any witness on the list is an expert as described in subdivision (b) of Section 2034.210, the exchange shall also include or be accompanied by an expert witness declaration....

Further, the expert declaration will include, “A brief narrative statement of the general substance of the testimony that the expert is expected to give.” (Code Civ. Proc., § 2034.260, subd. (c)(2).) Submitting an expert witness declaration that fails to comply with the content requirements of Code of Civil Procedure section 2034.260, subdivision (b) is treated the same as failure to submit an expert witness declaration altogether. In Bonds v. Roy (1999) 20 Cal.4th 140 [83 Cal.Rptr.2d 289, 973 P.2d 66], the defendant in a medical malpractice case designated an orthopedic surgeon to testify as to damages. However, during trial, the defendant sought to expand the scope of that testimony to include two new areas relating to the standard of care. In holding that the expansion was impermissible, the court stated:

[T]he statutory scheme as a whole envisions timely disclosure of the general substance of an expert’s expected testimony so that the parties may properly prepare for trial. Allowing new and unexpected testimony for the first time at trial ...is inconsistent with this purpose. We therefore conclude that the exclusion sanction of subdivision (j) applies when a party unreasonably fails to submit an expert witness declaration that fully complies with the content requirements ....” (Id. at 148.)

Mr. Dunivan and All Mechtech, LLC’s expert witness designation indicated that Mr. Yip’s testimony would be limited to “valuation of Mechtech Motorsports, evaluation of all economic and/or accounting information and data regarding Mechtech Motorsports, and economic damage computation.” (Exhibit 1, p. 1.4.) On September 25, 2012, the McFarlands’ counsel were surprised to learn, for the first time, of Mr. Dunivan and All Mechtech, LLC’s intention to go beyond the scope of the relevant designation. This occurred long after the deadline for a supplemental expert witness designation had passed. To the extent that Mr. Dunivan and All Mechtech, LLC intended their expert witness designation to include opinions regarding the McFarlands’ “alter ego” allegations, or as to whether Mr. Dunivan commingled his personal funds with those of the LLC, it should have clearly said so. Had the expert witness designation expressly stated that Mr. Yip would be providing such opinions, the McFarlands would have obtained such an expert witness of their own. Alternatively, the McFarlands would have prepared their own business valuation expert, Richard Holstrom, to testify as to such matters during his deposition. The McFarlands’ counsel reasonably relied upon Mr. Dunivan and All Mechtech, LLC’s expert witness designation as being both complete and unambiguous.

B. EXPERT OPINION TESTIMONY REGARDING THE McFARLANDS’ “ALTER EGO” ALLEGATIONS IS MORE PREJUDICIAL THAN PROBATIVE.

Expert testimony relating to the McFarlands’ alter ego allegations is unnecessary. The alter ego claim is straight-forward, and this Court is the trier of fact with respect to whether All Mechtech, LLC’s corporate veil should be “pierced.” Thus, any such expert testimony by Mr. Yip will only waste time and prejudice the McFarlands, as they do not have a counter expert of their own. Accordingly, the Court must exclude this evidence at trial.

IV. CONCLUSION

For the foregoing reasons, the McFarlands respectfully request that this Court issue an Order excluding or limiting expert



opinion testimony by Tony Yip regarding the moving parties’ “alter ego” allegations, including but not limited to, whether Cross-Defendants/Cross-Complainants William Dunivan and/or All Mechtech, LLC commingled funds. DATED: September 28, 2012 LAW OFFICES OF KENNETH N. GREENFIELD By: <<signature>> KENNETH N. GREENFIELD, ALEXANDRA N. SELFRIDGE Attorneys for Cross-Complainants/Cross-Defendants, JIM McFARLAND and MECHTECH MOTORSPORTS, INC. and Cross-Defendant JEANNE McFARLAND

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Notice of Motion and Motion for Summary Judgment by Defendant City of Vista; Memorandum of Points and Authorities in Support Thereof; Separate Statement of Undisputed Material Facts; Declarations of Matthew E. Bennett, Dolores Gascon, Susan Hayes, Rudy Luna and Chris Dzwigalski Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 to 25, inclusive, Defendants. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:


Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1..., 2012 WL 9297754...




Ema SAMAYOA, Plaintiff, v.

CITY OF VISTA; and Does 1 to 25, inclusive, Defendants.

No. 37-2011-00059962-CU-PO-NC. September 25, 2012.

Notice of Motion and Motion for Summary Judgment by Defendant City of Vista; Memorandum of Points and Authorities in Support Thereof; Separate Statement of Undisputed Material Facts; Declarations of Matthew E.

Bennett, Dolores Gascon, Susan Hayes, Rudy Luna and Chris Dzwigalski

Daley & Heft, LLP, Attorneys at Law, Robert R. Heft, Esq. (SBN 076739), Lee H. Roistacher, Esq. (SBN 179619), Matthew E. Bennett, Esq. (SBN 203049), 462 Stevens Avenue, Suite 201, Solana Beach, CA 92075, Telephone: (858) 755-5666, Facsimile: (858) 755-7870, E-mail: [email protected], [email protected], Attorneys for Defendant, City of Vista.


Date: December 14, 2012 Time: 1:30 p.m. Dept: N-28 Complaint Filed: November 21, 2011 Trial Date: None set TO PLAINTIFF AND HER ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on December 14, 2012 at 1:30 p.m., or as soon thereafter as counsel may be heard by the above-entitled Court, located at 325 South Melrose Drive, Vista, California, defendant City of Vista will, and hereby does, move the Court for summary judgment in favor of Defendant, and against plaintiff Ema Samayoa, on the grounds that there are no triable issues of material facts and the City is entitled to judgment as a matter of law. NOTICE IS FURTHER GIVEN that counsel may obtain a tentative ruling via the internet at http://www.sandiego.courts.ca.gov/superior after 3:00 p.m. on the day immediately preceding the scheduled hearing date. Unless oral argument is specifically prohibited by the Court, any party who has timely filed pleadings on this motion, and who wishes to orally argue the motion, must appear on the date and at the time set forth above. Failure to appear at the scheduled hearing shall be deemed waiver of oral argument. If neither party appears at the scheduled hearing, the tentative ruling shall become the final order of the Court. This motion is based upon Code of Civil Procedure §437c, this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the Separate Statement of Undisputed Facts, the supporting declarations of Matthew E. Bennett, Dolores Gascon, Susan Hayes, Rudy Luna, and Chris Dzwigalski, all pleadings and papers on file in this action, and upon such other matters as may be presented to the Court at the time of the hearing.



Dated: September 24, 2012 Daley & Heft, LLP By: <<signature>> Robert R. Heft Lee H. Roistacher Matthew E. Bennett Attorneys for Defendant, City of Vista Defendant, City of Vista, submits its memorandum of points and authorities in support of its motion for summary judgment as follows:

I. INTRODUCTION

Plaintiff, Ema Samayoa (“Samayoa”), tripped and fell when she stepped onto a slightly recessed manhole cover while walking on a private roadway. Plaintiff brought this dangerous condition of public property suit against the City of Vista (“City”).1

1

Samayoa’s form complaint asserted a general negligence cause of action and a premises liability cause of action asserting countsfor general negligence and dangerous condition of property pursuant to Government Code section 835. (See Exhibit “C”.) Pursuant to a demurrer/motion to strike, this Court dismissed with prejudice the negligence cause of action and the negligence count of thepremises liability cause of action.

The City cannot be liable because the slightly recessed manhole cover constituted, at most, a trivial condition not posing a substantial risk of harm when used with due care. Also, the City did not create the condition and had no notice of the condition.

II. FACTS

On November 13, 2010, Samayoa was walking with her husband near her residence on Camino Corto, a private roadway in a private mobile home park. (Fact 1.) Samayoa claims she suddenly fell when she stepped onto the edge of a slightly depressed manhole cover in the middle of the street. (Fact 2.) The manhole cover was recessed between 1 and 1 ½ inches below the roadway surface. (Fact 3.) Samayoa admits that at the time she fell, she had no problem seeing where she was going (Fact 4), the manhole cover was not covered with debris of any kind (Fact 5), and her view of the condition was not obstructed in any way. (Fact 6.) There were no jagged edges or deep holes around the manhole cover. (Fact 7.) Samayoa admits she was not watching where she was going at the time she fell. (Fact 8.) The manhole cover is located on a private roadway. (Fact 9.) City does control the manhole cover which opens to a sewage main. (Fact 10.) Photographs of the manhole cover show that at the time the City made repairs on January 6, 2011, after notice of the incident, it was slightly recessed below the roadway surface. (Fact 11.) There were no prior complaints or claims received by the City concerning the condition of the manhole cover. (Fact 12.) Samayoa herself admits she does not know how long the condition existed and is unaware of any other injury accidents occurring or being reported by anyone prior to her incident. (Fact 13.)



III. AUTHORITY

Code of Civil Procedure § 437c provides a mechanism to cut through a pleading to determine whether material factual disputes exist such that a trial is necessary. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Aguilar articulated the respective burdens of the moving and opposing party under §437c.

“[F]rom commencement to conclusion, the party moving for summary judgment [or adjudication] bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principal that a party who seeks a court’s action in his favor bears the burden of persuasion. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.... [T]he party moving for summary judgment [or adjudication] bears an initial burden of production to make a prima facia showing of the nonexistence of any triable issue of material fact; if he carriers his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facia showing of the existence of a triable issue of material fact.... A prima facia showing is one that is sufficient to support the position of the party in question.”

(Aguilar, supra, 24 Cal.4th at 850-851 [internal citations and footnotes omitted, emphasis added].) A defendant moving for summary judgment meets its initial burden of proof by negating an element of a plaintiff’s claim or by showing that the plaintiff cannot establish a necessary element of his claim. A defendant can meet his or her burden through an affirmative production of evidence or by pointing to a plaintiff’s factually devoid discovery responses. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 767-768; Aguilar, supra, 25 Cal.4th at 849, 854; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)

IV. CLAIMS BASED ON CONDITIONS OF PUBLIC PROPERTY: GOVERNMENT CODE SECTION 835 The exclusive statutory basis for liability against a public entity based on a condition of property is §835. General negligence principals are inapplicable. (Eastburn, supra, 31 Cal.4th at 1183; Zelig, supra, 27 Cal.4th at 1132.) As aptly stated by Division One of the Fourth District Court of Appeal in Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434: “A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute. Section 835 is the sole statutory basis for a claim imposing liability on a public entity based on the condition of public property. Under section 835, a public entity may be liable if it creates an injury-producing dangerous condition on its property or if it fails to remedy a dangerous condition despite having notice and sufficient time to protect against it. To state a cause of action against a public entity under section 835, a plaintiff must plead: (1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measures to protect against it. Section 830 defines a dangerous condition as a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used. Property is not “dangerous” within the meaning of the statutory scheme if the property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care.” (Id. at 439 [internal quotes and cites omitted].)

V. SUMMARY JUDGMENT IS APPROPRIATE BECAUSE SAMAYOA CANNOT ESTABLISH ALL OF GOVERNMENT CODE § 835’S ELEMENTS

A. Government Code §835’s Elements



To establish liability under §835, plaintiff must prove the following: “[T]he property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under section 835.2 a sufficient time prior to the injury to have taken remedial measures to protect against the dangerous condition.” (Government Code §835.)

B. Samayoa Cannot Establish A Dangerous Condition Existed: Any Defect Was Trivial As A Matter Of Law

Samayoa must prove that the slightly recessed manhole cover where she tripped constituted a dangerous condition. She cannot. As a preliminary matter, it must be noted that the mere happening of an accident is not evidence that the condition at issue is dangerous. (Government Code §830.5(a); Brown, supra, 4 Cal.4th at 830.) This rule is consistent with the statutory definition of a dangerous condition, set forth in §830(a). It provides that a dangerous condition is one creating:

“... a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”

Section 830.2 further limits the statutory definition of a dangerous condition. It provides that:

“A condition is not a dangerous condition within the meaning of this chapter if the ... court ... determines, as a matter of law, that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property ... was used in due care in a manner in which it was reasonably foreseeable that it would be used.”

Section 830.2 allows a court to determine whether a given condition is not dangerous as a matter of law so that a public entity does not become an insurer against all injuries occurring on its property, especially if the injury arises from a minor and trivial defect. (Fielder v. City of Glendale (1971) 71 Cal.App.3d 719, 734.) California courts have long recognized that defects exist on and around public ways. The mere fact that a defect exists, however, does not automatically impose liability upon a public entity.

“Minor defects nearly always have to exist. The City is not an insurer of the public ways against all defects. If a defect will generally cause no harm when one uses the sidewalk with ordinary care, then the City is not to be held liable if, in fact, injury does arise from the defect.”

(Fielder, supra, 71 Cal.App.3d at 726.) “It is impossible to maintain heavily traveled surfaces in perfect condition. Minor defects ... inevitably occur, and the continued existence of such cracks without warning or repair is not unreasonable.” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 929.) Fielder is the pre-eminent case on the trivial defect rule. Fielder controls this Court’s analysis and requires this Court to find the defect alleged by plaintiff trivial as a matter of law. Fielder aptly summarizes the appropriate test for determining whether, as a matter of law, a defect is trivial.



“We hold that, in the first instance, it is for the court to determine whether, as a matter of law, a given defect is not dangerous. This is to guarantee that cities do not become insurers against injuries arising from trivial defects. We further hold that, when a court determines whether a given defect is trivial, as a matter of law, the court should not rely merely upon the size of the depression. Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate. As such, the court should view the intrinsic nature and quality of the defect to see if, for example, it consists of the mere non-alignment of two horizontal slabs or whether it consists of a jagged and deep hole. The court should also look at other factors such as whether the accident occurred at night in an unlighted area. Furthermore, the court should see if there is any evidence that other persons have been injured on this same defect.”

(Fielder, supra, 71 Cal.App.3d at 734; see also Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566-568.) Here, Samayoa was in the middle of a roadway, not a sidewalk, when the incident occurred. (Fact 14.) She estimated the manhole cover was depressed only between 1 and 1 ½ inches below the roadway surface. (Fact 3.) The incident occurred during daylight hours, it was not raining and there was no visual impairment or other aggravating circumstances. (Fact 4.) There were no leaves, debris, water or other objects which obstructed Samayoa’s view of the manhole cover and there were no jagged edges or deep holes around the manhole cover. (Facts 4-7.) Plaintiff even admitted she was not looking where she was going when she fell. (Fact 8.) Under Fielder, the irregularity in the subject roadway created a mere trivial risk and not a dangerous condition. Therefore, as a matter of law, City is not liable for Samayoa’s fall on the roadway. See Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 243; Fielder, supra, 71 Cal.App.3d at 734-735; see also Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477.)

C. The City Did Not Create The Allegedly Dangerous Condition

The City did not create the subject condition. (Fact 15.) Samayoa must accordingly establish that the City had notice of the sidewalk displacement.

D. Samayoa Cannot Establish That The City Had Notice Of The Allegedly Dangerous Condition And Its Dangerous Nature

1. Samayoa Must Establish Notice

Under §835, Samayoa must show that the City had notice of the alleged dangerous condition a sufficient time before her fall to have taken remedial measures. (Government Code §835(b).) Samayoa has the burden of proving notice. (Briggs v. State (1971) 14 Cal.App.3d 489, 494; Clark v. Michaels (1970) 4 Cal.App.3d 364, 372.) Failure to establish notice is fatal to her recovery. (Van Kempen, supra, 23 Cal.App.3d at 826-827; State v. Superior Court (1968) 263 Cal.App.2d 396, 400-401; Strongman v. County of Kern (1967) 255 Cal.App.2d 308, 313-316.)

2. Notice is a Question of Law

This Court may determine, as a matter of law, whether the City had notice of the alleged dangerous condition. (State, supra, 263 Cal.App.2d at 401; Strongman, supra, 255 Cal.App.2d at 315.)



3. The City Did Not Have Actual Notice

§835.2(a) defines actual notice as follows:

“A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.”

To establish actual notice, it is not enough to show that the City had general knowledge about the condition alleged to be dangerous. Under §835.2(a), plaintiff must establish two things: (1) that the City knew about the condition; and (2) that the City knew or should have known that it presented a substantial risk of harm. (State, supra, 263 Cal.App.2d at 400.) Actual notice is commonly established by showing evidence of a prior accident or complaint regarding the specific condition alleged to be dangerous. (Matthews v. State (1978) 82 Cal.App.3d 116, 122; see also Morris v. State (1979) 89 Cal.App.3d 962; Rodriguez v. City of Los Angeles (1963) 215 Cal.App.2d 463.) Samayoa provided testimony which was factually devoid regarding the City’s actual notice of the recessed manhole cover and its allegedly dangerous nature. (Fact 13.) Plaintiff accordingly bears the burden of producing admissible evidence creating a material issue of fact regarding the City’s actual notice. (Aguilar, supra, 25 Cal.4th at 854; Union Bank supra, 31 Cal.App.4th at 590.) Notwithstanding that it is Samayoa’s burden to establish actual notice, the City’s evidence establishes a lack of actual notice of the existence of the subject condition and its allegedly dangerous nature prior to plaintiff’s fall on November 13, 2010. (Fact 11.) Even if the City knew about the subject condition before plaintiff’s fall, this does not mean the City had actual notice under §835.2(a). Actual notice requires showing not only knowledge of the condition but also of its dangerous character. The existence of the condition itself is insufficient. Because there is no evidence of prior complaints or claims, it cannot be said that the City had actual notice that the condition was dangerous. (Fact 12.)

4. The City Did Not Have Constructive Notice

Constructive notice is defined by §835.2(b), which provides:

“A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition existed for such a period of time and was such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”

To establish constructive notice, Samayoa must show an obvious condition and the length of time the specific condition alleged to be dangerous existed. (State, supra, 263 Cal.App.3d at 400-401; Strongman, supra, 255 Cal.App.2d at 313-316.) Because Samayoa’s responses on the issue of constructive notice were factually devoid, she bears the burden on this motion of establishing constructive notice. Clearly, she cannot meet this burden as she does not know how long the condition existed. (Fact 13.) Plaintiffs often argue that the condition itself is of such a nature that the public entity should have discovered it through some type of inspection system. However, that argument alone is insufficient as a matter of law because Samayoa must first show how long the condition existed, in the condition it was on the date she fell.

“[I]n determining whether there is constructive notice, the method of inspection has been held to be secondary. The primary and indispensable element of constructive notice is a showing that the obvious [dangerous] condition existed a sufficient period of time before the accident.”

(State, supra, 263 Cal.App.3d at 400; see also Strongman, supra, 255 Cal.App.2d at 313.)



Samayoa cannot establish that the City had constructive notice of the slightly recessed manhole cover. She does not know how long before her fall the area was in the condition it was when she fell. (Fact 13.) Samayoa’s inability to indicate how long the condition existed is fatal to her cause of action because it precludes, as a matter of law, this Court from finding that the City had constructive notice. (State, supra, 263 Cal.App.3d at 400-401; Strongman, supra, 255 Cal.App.2d at 313-316.) Moreover, the condition is not obviously dangerous and there were no prior reported problems. (Facts 3, 7, 11 and 12.) The absence of prior complaints or accidents is affirmative evidence of a lack of constructive notice. (Sambrano, supra, 94 Cal.App. 4th at 243.)

VI. CONCLUSION

For the foregoing reasons, the Court must grant City’s Motion for Summary Judgment. Dated: September 24, 2012 Respectfully submitted, Daley & Heft, LLP By: <<signature>> Robert R. Heft Lee H. Roistacher Matthew E. Bennett Attorneys for Defendant/Cross-Complainant, City of Vista

End of Document


Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 to 25, inclusive, Defendants.


Filings (3)


1. Cross-Complaint of Defendant/Cross-Complainant City of Vista for Indemnity Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 to 25, inclusive, Defendants; City of Vista, Cross-complainant, v. Caritas Affordable Housing, Inc. and Roes 1-20, Cross-defendants. 2012 WL 9297757


2. Defendant City of Vista’s Notice of Demurrer and Demurrer to Plaintiff’s Complaint; Memorandum of Points and Authorities; Declaration of Lee H. Roistacher Ema SAMAYOA, Plaintiff, v. CITY OF VISTA; and Does 1 to 25, inclusive, Defendants. 2012 WL 9297755







Direct History (1)

1. Samayoa v. City of Vista 2013 WL 5590857 , Cal.Super. , Jan. 04, 2013

Related References (3) 2. Samayoa v. City of Vista 2012 WL 9320974 , Cal.Super. , Mar. 23, 2012






Title Court Date


The Court hears oral argument and CONFIRMS the tentative ruling as follows: Defendant’s motion for summary judgment is granted. Plaintiff has failed to establish a triable issue of...






Order Denying Plaintiff’s Motion to Tax Costs Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano, an individual; and Does 1 through 10, inclusive, Defendants, And Related Cross-Actions. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:


Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY,..., 2012 WL 5465450...




Daisy FLORES, an individual, Plaintiff, v.

Matthew KELLY, an individual; Aurelio Soriano, an individual; and Does 1 through 10, inclusive, Defendants, And Related Cross-Actions.

No. 37-2010-00060976-CU-PA-NC. September 18, 2012.

Unlimited Jurisdiction

Order Denying Plaintiff’s Motion to Tax Costs

Kellie B. Thompson, Esq. - State Bar No. 203105, Boles & Di Mascio, 3111 Camino Del Rio North, Suite 700, San Diego, CA 92108, Phone: (619) 584-3300, Fax: (619) 280-4588, Attorney for Defendant/Cross-Complainant/Cross-Defendant, Aurelio Soriano.

Assigned to for All Purposes: Hon. Earl H. Maas.

DEPT: N-28 On September 14, 2012 at 1:30 pm, Plaintiff, DAISY FLORES’ Motion to Tax Costs was heard before the Honorable Earl H. Maas, III in Dept. N-28 of the above-named Court. Kellie B. Thompson appeared on behalf of Defendant, AURELIO SORIANO. The Court has considered all of Plaintiff’s arguments regarding Defendants’ rights to recover the costs requested and their reasonableness. The costs are recoverable pursuant to CCP § 998 with the exception of the deposition fees incurred before the § 998 offers. Defendants’ may recover those deposition fees as the prevailing party pursuant to CCP §§ 1032(a)(4) which states that “...a defendant as against those plaintiffs who do not recover any relief against that defendant.”; 1032(b); and 1033.5(c)(1). Based on the type of claim brought by Plaintiff against each Defendant and the length of the trial, the costs requested by Defendants’ are deemed reasonable in amount, and reasonably necessary to the litigation; Plaintiffs’ Motion to Tax Costs is denied. IT IS HEREBY ORDERED that Costs totaling $32,366.32 must be paid, on or before October 14, 2012, as follows: $24,723.93 to Defendant, MATTHEW KELLY; and, $7,642.39 to Defendant, AURELIO SORIANO. DATED: 9-19-12 <<signature>> JUDGE OF THE SUPERIOR COURT JUDGE EARL MAAS

End of Document


Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Sorian...


Filings (29)


1. Complaint for Damages Based on: 1. Negligence - General 2. Negligence Per Se Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriana Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2010 WL 9010529

Cal.Super. Oct. 20, 2010 Pleading

2. Cross-Complaint of Matthew Kelly for Comparative Indemnity and Declaratory Relief Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants; Matthew Kelly, Cross-Complainant, v. Aurelio Soriano Flores, an individual; and Roes 1 through 10, inclusive, Cross-Defendants. 2010 WL 9010540


3. Cross-Complaint (1) Indemnity (2) Contribution Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants; Aurelio Soriano (Erroneously Sued as Aurelio Soriano Flores), Cross-Complainant, v. Matthew Kelly and Roes 1-20, inclusive, Cross-Defendants. 2010 WL 9010539


4. Renewed Motion in Limine to Exclude Defense Testimony of Accident Reconstructionists Nicholas Carpenter, Ph.D. and Ronald A. Sealey on Mechanism of Injury, Causation of Injury, or Other Medical Diagno Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY an individual ; Aurelio Soriana Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2012 WL 5363721

Cal.Super. May 10, 2012 Motion

5. Renewed Motion in Limine to Introduce Demonstrative Evidence to Aid Expert Testimony of Dr. Paul A. Paez Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriana Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2012 WL 5363719


6. Defendant Matthew Kelly’s, Motion in Limine to Exclude, Supplemental Report of Paul Paez, D.C. Dated January 3,2012, and to Exclude Dr. Paez’ Testimony and Evidence Re Biomechanics Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2012 WL 5363585


7. Defendant Aurelio Soriano’s Opposition to Plaintiff’s Motion in Limine to Introduce Demonstrative





Evidence to Aid Expert Testimony of Dr. Paul A. Paez Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants. And Related Cross-Actions. 2012 WL 5363720

8. Defendant Matthew Kelly’s Opposition to Plaintiff’s Motion in Limine to Introduce Demonstrative Evidence to Aid Expert Testimony of Dr. Paul A. Paez Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2012 WL 5363577


9. Defendant Aurelio Soriano’s Motion in Limine to Exclude Expert Testimony of Rafael Cuellar, M.D. Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants; And Related Cross-Actions. 2012 WL 5363578


10. Defendant Aurelio Soriano’s Motion in Limine to Exclude Supplemental Report of Paul Paez, D.C. Dated January 3, 2012 Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants; And Related Cross-Actions. 2012 WL 5363584


11. Defendant Aurelio Soriano’s Motion in Limine to Exclude Expert Testimony of Paul Paez, D.C. Regarding MRI and Radiology Report Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants; And Related Cross-Actions. 2012 WL 5363586


12. Defendant Matthew Kelly’s Trial Brief Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2010 WL 9010530


13. (Report or Affidavit of Paul A. Paez, D.C.) Daisy FLORES, v. Matthew KELLY et al. 2012 WL 7040393

Cal.Super. Jan. 3, 2012 Expert Materials

14. Deposition of Raphael E. Cuellar, M.D. Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Auerlio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2011 WL 9960791

Cal.Super. Aug. 29, 2011 Expert Materials

15. 2012 WL 6707692, 49 Trials Digest 15th 27 Flores vs. Kelly

— Cal.Super. Jul. 16, 2012 Jury Verdict




16. Special Verdict Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2012 WL 5363207

Cal.Super. Jun. 7, 2012 Jury Verdict

17. Docket 37-2010-00060976-CU-PA-NC DAISY FLORES v. MATTHEW KELLY

— Cal.Super. Oct. 20, 2010 Docket

18. 2012 WL 6707692, 49 Trials Digest 15th 27 Flores vs. Kelly

— Cal.Super. Jul. 16, 2012 Expert Court Document

19. (Report or Affidavit of Paul A. Paez, D.C.) Daisy FLORES, v. Matthew KELLY et al. 2012 WL 7040393

Cal.Super. Jan. 3, 2012 Expert Court Document

20. Deposition of Raphael E. Cuellar, M.D. Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Auerlio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2011 WL 9960791

Cal.Super. Aug. 29, 2011 Expert Court Document

21. Renewed Motion in Limine to Exclude Defense Testimony of Accident Reconstructionists Nicholas Carpenter, Ph.D. and Ronald A. Sealey on Mechanism of Injury, Causation of Injury, or Other Medical Diagno Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY an individual ; Aurelio Soriana Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2012 WL 5363721


22. Renewed Motion in Limine to Introduce Demonstrative Evidence to Aid Expert Testimony of Dr. Paul A. Paez Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriana Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2012 WL 5363719


23. Defendant Matthew Kelly’s, Motion in Limine to Exclude, Supplemental Report of Paul Paez, D.C. Dated January 3,2012, and to Exclude Dr. Paez’ Testimony and Evidence Re Biomechanics Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2012 WL 5363585


24. Defendant Aurelio Soriano’s Opposition to Plaintiff’s Motion in Limine to Introduce Demonstrative Evidence to Aid Expert Testimony of Dr. Paul A. Paez Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants. And Related Cross-Actions. 2012 WL 5363720

Cal.Super. Feb. 9, 2012 Expert Court Document

25. Defendant Matthew Kelly’s Opposition to Plaintiff’s Motion in Limine to Introduce Demonstrative





Evidence to Aid Expert Testimony of Dr. Paul A. Paez Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2012 WL 5363577

26. Defendant Aurelio Soriano’s Motion in Limine to Exclude Expert Testimony of Rafael Cuellar, M.D. Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants; And Related Cross-Actions. 2012 WL 5363578


27. Defendant Aurelio Soriano’s Motion in Limine to Exclude Supplemental Report of Paul Paez, D.C. Dated January 3, 2012 Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants; And Related Cross-Actions. 2012 WL 5363584


28. Defendant Aurelio Soriano’s Motion in Limine to Exclude Expert Testimony of Paul Paez, D.C. Regarding MRI and Radiology Report Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants; And Related Cross-Actions. 2012 WL 5363586


29. Defendant Matthew Kelly’s Trial Brief Daisy FLORES, an individual, Plaintiff, v. Matthew KELLY, an individual; Aurelio Soriano Flores, an individual; and Does 1 through 10, inclusive, Defendants. 2010 WL 9010530





Direct History (1)

1. Flores v. Kelly 2012 WL 5379851 , Cal.Super. , Jul. 16, 2012

Related References (1) 2. Flores v. Kelly 2012 WL 5379861 , Cal.Super. , May 11, 2012




Title Court Date

1. Flores v. Kelly 2012 WL 5379851

ACTION DATE: 10/23/10 DEPT. N-28 This action came on regularly for trial on June 4, 2012 in Department 28 of the San Diego Superior Court, the Honorable Earl H. Maas, III, Judge...


2. Flores v. Kelly 2012 WL 5379861

DATE: 05/11/2012 TIME: 09:15:00 AM DEPT: N-28 JUDICIAL OFFICER PRESIDING: Earl H. Maas, III CLERK: Noreen McKinley REPORTER/ERM: SueAnn Toney CSR# 10092 BAILIFF/COURT ATTENDANT:...

Cal.Super. May 11, 2012


Plaintiff’s Points and Authorities in Support of Motion for Judgment Notwithstanding the Verdict Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes, and Does 1 to 50, Defendants. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:


Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH;..., 2012 WL 6630779...





REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes, and Does 1 to 50, Defendants.

No. 37-2011-00055117-CU-PO-NC. September 11, 2012.

Plaintiff’s Points and Authorities in Support of Motion for Judgment Notwithstanding the Verdict

Andrew J. Zucker, Esq. SBN 167348, The Zucker Law Firm, P.C., 43434 Business Park Drive, Temecula, CA 92590, Tele: 951-699-2100 / Fax: 951-699-2102.

Suzanne H. Mindlin, SBN 182237, P. O. Box 9, Cardiff by the Sea, CA 92007, Attorneys for Plaintiff Richard. A. Powell.

Assigned to: Hon. Earl H. Maas III.

Trial Date: July 2, 2012 Verdict Date: July 19, 2012 Judgment Entered: August 23, 2012 Notice of Judgment: August 27, 2012 Complaint Filed: June 7, 2011

TABLE OF CONTENTS

I. INTRODUCTION AND SUMMARY OF ARGUMENT .....................................................................................................

1

II. RELEVANT FACTS AND EVIDENCE ..................................................................................................................................

1

A. Neither the Original Plans, Nor Any Permit Issued, Designated a Customer Waiting Area at the Location Where Mr. Powell Was Injured .....................................................................................................................................................

1

B. Mr. Powell Proved at Trial That Naythan’s Negligence Was a Substantial Factor in Causing His Harm Suffered ..................................................................................................................................................................................................

5

C. Naythan Failed to Produce Evidence at Trial to Support the Jury’s Finding That Naythan’s Negligence Was Not a Substantial Factor in Causing M r. Powell’s Harm Suffered ........................................................................

7

III. ARGUMENT AND AUTHORITY ..........................................................................................................................................

9

A. JNOV is Appropriate in This Case .........................................................................................................................................

9

B. As a Matter of Law, Naythan’s Negligence Was a Substantial Factor in Causing Mr. Powell’s Harm .........

12



C. No Evidence Suggests that Naythan’s Conduct Was a “Remote or Trivial Factor” in Causing the Harm Suffered by Mr. Powell ....................................................................................................................................................................

14

IV. CONCLUSION: THIS COURT SHOULD ENTER AN ORDER GRANTING JNOV ON THE ISSUE OF NAYTHAN’S LIABILITY TO MR. POWELL .............................................................................................................................

15


California Cases: Bates v. John Deere Co. (1983) 148 Cal. App. 3d 40 ........................

12

Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160 .......................................................................

10, 11

Carter v. CB Richard Ellis, Inc. (2004) 122 Cal. App. 4th 1313 ...

10

Estate of Teed (1952) 112 Cal.App.2d 638 ...........................................

10

Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805 ........

10

Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal. App. 2d 504 .......................................................................................................................

9, 11, 12, 13, 14

Hauter v. Zogarts (1975) 14 Cal. 3d 104 ...............................................

9, 11

Holcombe v. Burns (1960) 183 Cal. App. 2d 811 ...............................

9

Knight v. Contracting Engineering Co. (1961) 194 Cal. App. 2d 435 .......................................................................................................................

10

Krause v. Apodaca (1960) 186 Cal.App.2d 413 ..................................

10

Lopez v. Superior Court (1996) 45 Cal App. 4th 705 ........................

14

Mayes v. Bryan (2006) 139 Cal. App. 4th 1075 ..................................

12

Oakland Raiders v. Oakland-Alameda County Coliseum (2006) 144 Cal. App. 4th 1175 .................................................................................

9, 10

Portillo v. Aiassa (1994) 27 Cal. App. 4th 1125 .................................

14

Roddenberry v. Roddenberry (1996) 44 Cal. App. 4th 634 .............

10

Sukoff v. Lemkin (4th App. Dist. 1988) 202 Cal. App. 3d 740 .......

9

Valdez v. J. D. Diffenbaugh Co. (1975) 51 Cal. App. 3d 494 .........

12

California Statutes: Code of Civil Procedure § 629 ...................................................................

9, 15



California Jury Instructions: CACI No. 400 ..................................................................................................

4, 7

CACI No. 430 ..................................................................................................

4, 7, 12

I. INTRODUCTION AND AND SUMMARY OF ARGUMENT On October 9, 2010, Plaintiff Richard Powell was severely injured when he was struck b an automobile while seated at a customer waiting area next to Redhawk Hand Car Wash, on commercial premises owned by defendant Naythan Properties, LLC (Naythan). A central issue in this action is whether Naythan was negligent in allowing the waiting area to be located on a narrow, unprotected concrete island abutted by perpendicular parking stalls; adjacent to a parking lot serving the businesses in the shopping center operated by Naythan. Naythan’s negligence was based on its failure to properly inspect and control its rented commercial property, and to take reasonable steps to make it safe, as mandated by applicable law governing commercial property landlords. At trial, the jury found Naythan negligent, which necessarily includes a factual finding that the property was unsafe (CACI No. 1006)1. As discussed below, negligence need only contribute to the plaintiff’s harm, as more than a remote or trivial factor, in order to constitute a substantial factor in causing the harm (CACI 430). Such contribution may be shown through a “but for” analysis. It is abundantly clear that but for Naythan’s negligence, Mr. Powell would not have been sitting in an unpermitted, unreasonably dangerous waiting area, and would not have suffered catastrophic injuries. Thus, as a matter of law, Naythan’s negligence was a substantial factor in causing his harm. No substantial evidence exists to support the verdict, and an order should be entered granting judgment notwithstanding the verdict on the issue of liability, with damages to be determined upon further consideration. 1

CACI 1006, entitled “Landlord’s Duty,” provides in pertinent part, “After a tenant has taken possession, a landlord must take reasonable precautions to prevent injury due to any unsafe condition in an area of the premises under the tenant’s control if the landlord has actual knowledge of the condition and the right and ability to correct it.”

II. RELEVANT FACTS AND EVIDENCE

A. Neither the Original Plans, Nor Any Permit Issued, Designated a Customer Waiting Area at the Location Where Mr. Powell Was Injured

In or about 1999, architect Roy Johnson drew up plans for a shopping center to be locate in an unincorporated area of Temecula. The center was to house a gas station, convenience store, car wash, and auto lube facility. The plans, as approved by Riverside County, showed a raised concrete walkway, abutted by perpendicular parking, at the location where the sitting area occupied by Mr. Powell on the date of the accident was later installed. The original plans allowed for a two-foot overhang by vehicles parked in the stalls, but did not otherwise designate a use for the area. At trial, Mr. Johnson testified that it was to be used as a sidewalk for people parking in the stalls to get to and from the businesses-his plans did not show or contemplate a customer waiting area in this 8-foot wide concrete area (Ex. 1, Original R. Johnson plans). Naythan’s expert witness, architect Diane Ballard, acknowledged the testimony of Mr. Johnson to this effect, and further acknowledged that the original plans did not designate the area as anything other than a pedestrian walkway (Ex. 2, Testimony of Diane Ballard, p. 51:5-20). In or about 2005, the space occupied by the convenience store was leased by 7-Eleven. This entailed a remodel of the building housing the store, as well as proposed changes to the parking plans. By this time the property had been annexed by the City of Temecula, so the plans drafted by 7-Eleven were approved by the City. It is undisputed that neither Mr. Johnson’s original plans, nor those approved in conjunction with the 7-Eleven remodel, showed a customer waiting area on the



sidewalk. That area was added in or about 2006, and was set up so as to encourage customers to gather there. It included a permanently installed palapa shade structure, with attached tables, plus moveable chairs and benches beneath and beside the structure. Witness Annette Goods, who had patronized the car wash once or twice a month for about 15 months prior to the date of the accident, testified that the chairs were always present, facing away from the parking stalls, looking south (Ex. 3, Testimony of Annette Goods pp. 7:15-8:16, 11:3-13). Witness Marco Gonzalez also testified that the area was located so that customers who sat facing exit bay for the car wash would have their backs to the cars coming in and out of the perpendicular parking stalls. This is how he and Mr. Powell, as well as other customers, were positioned on October 9, 2010 (Ex. 4, Testimony of Marco Gonzalez, p.6:9-19). Ms. Goods observed that the parking stalls were used by both car wash customers and patrons of the 7-Eleven store, many of whom were in a hurry. There were no barriers except the curb, and vehicle bumpers hung over the curb (Ex. 3, pp. 13:23-14:12, 16:14-17:3). After using the sidewalk waiting area on three or four occasions, she stopped sitting there, and would not allow her daughter to do so, because she felt it to be unsafe. She had observed vehicles whipping in and out of the parking spaces, and cars coming within inches of people sitting in the chairs (Ex. 3, pp. 12:23-14:14, 14:23-15:7, 17:14-24, 18:4-11). On October 9, 2010, a Saturday, business at the shopping plaza was brisk. The car wash was extremely busy, with patrons enduring long waits for their vehicles (Ex. 3, pp. 18:12-14, 24:2-11). Mr. Gonzalez described conditions at the car wash that day as “very disorganized” and “severely backed up.” He observed “... a lot of people wandering around, not knowing what to do and scurrying, rushing around” (Ex. 4, p. 6:23-7:4). He further noted, “...the chaotic nature o the workers there at that time and disorganized behavior that was taking place, the delays were taking place, the impatience of the people waiting some 20, 30 minutes and commenting on it” (Ex. 4, p. 8:24-28). Defendant Aris Pepes agreed that on that Saturday the car wash was extremely busy, almost chaotic (Ex. 5, Testimony of Aris Pepes, pp. 18:21-19:1). Mr. Gonzalez described the scene that day: Q: Was there a lot more people on that sidewalk area? A: Oh, yeah. That vehicle could have mowed through a crowd of people while you were standing there waiting, walking about, standing there in front of the palapa with their cups on that table holder on the post. It’s just timing when that car came through there. (Ex. 4, p. 16:25-17:3). On October 9, 2010, while for the vehicle he had dropped off to be detailed, Mr. Powell took a seat in the subject waiting area, near the palapa. Mr. Pepes was also a Red Hawk customer that day (Ex. 5, p. 5:4-15). He testified that after his car was brought to a parking space perpendicular to the sitting area, as he maneuvered it in preparation to leave, it accelerated forward against his will and continued over the curb and through the sitting area, despite his attempt to stop it (Ex. 5, pp. 9:14-28, 12:4-13:18, 14:2-10). Mr. Pepes’ vehicle struck Mr. Powell, nearly severing his left leg, resulting in its subsequent amputation. Trial of this matter was limited to Mr. Powell’s action against Naythan. Trial proceeded for approximately eight days before the case was sent to the jury. Among the jury instructions provided to the jury were the following: 400. Negligence--Essential Factual Elements Richard Powell claims that he was harmed by Naythan Properties, LLC’s negligence. To establish this claim, Mr. Powell must prove all of the following: 1. That Naythan Properties, LLC, was negligent; 2. That Mr. Powell was harmed; and 3. That Naythan Properties, LLC’s negligence was a substantial factor in causing Mr. Powell’s harm.



430. Causation: Substantial Factor A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. After two partial days of deliberations, the jury returned a Special Verdict Form finding as follows: We answer the questions submitted to us as follows: 1. Did Naythan Properties, LLC, own the subject property? Yes X

No___

If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 2. Was Naythan Properties, LLC, negligent in the oversight of the property? Yes X

No___

If your answer to question 2 is yes, then answer question 3. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 3. Was Naythan Properties, LLC’s negligence a substantial factor in causing harm to Richard Powell? Yes ___

No X

If your answer to question 3 is yes, then answer question 4. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. In accordance with the instructions on the form, the jury did not proceed to the damages questions on the special verdict form.

B. Mr. Powell Proved at Trial That Naythan’s Negligence Was a Substantial Factor in Causing His Harm Suffered

In addition to those facts outlined above, the following facts were either undisputed and/or established by uncontroverted



evidence at trial: 1. Mr. Powell was injured on October 9, 2010, while sitting in a chair in a customer waiting area located on property owned by Naythan, which contained a permanently installed palapa shade structure and moveable seats. Naythan’s control over the area, and its power to regulate its tenants’ use of the premises, including common areas, was indisputably established by the lease governing the relationship between Naythan and Red Hawk (Ex. 6 [Lease], see especially §§ 16.6 and Ex. F thereto). 2. Prior to the date of Mr. Powell’s injury, Naythan was aware of the customer waiting area on its property (Ex. 7, Testimony of Adi Elias, pp. 11:4-12:10). 3. After learning of the existence of the waiting area, but before Mr. Powell’s injury, Naythan did not remove or alter, or ask any other party to remove or alter, the customer waiting area, although it had the authority and ability to do so. Naythan’s Person Most Knowledgeable (PMK) Adi Elias testified on cross-examination as follows: Q: Naythan Properties had the ability to remove the seating area of the sidewalk had they wanted to, correct? A: Yes, sir. Q: And you also had enough time from when you first knew about it to have removed before October 9 of 2010? A: If I had the time to remove it, if I wanted to, is that the question? Q: You had enough time to do that, correct? A: Absolutely. (Ex. 7, pp. 13:22-14:4). Naythan’s human factors expert Carl Beels also acknowledged that Naythan had the means and ability to control the area and remove the seating area (Ex. 8, Testimony of Carl Beels, p. 63:28-64:25). 4. Prior to Mr. Powell’s injury, Naythan did not install or ask any other party to install any protective devices around the customer waiting area, although it could have done so, likely without incurring significant expense (Ex. 8, pp. 63:28-64:25). 5. Naythan did not conduct safety inspections of this property between 2005 and the time the accident occurred in 2010, nor did it plan to conduct regular inspections of the property in the future (Ex. 7, pp. 9:13-10:8). 6. Naythan produced no evidence that it (or anyone else) had, at any time prior to the accident, sought or obtained any government permit to construct the customer waiting area where Mr. Powell was injured. It is undisputed that no permit was ever issued by any government entity permitting the installation or use of a palapa or waiting area on the subject sidewalk--and it was established by expert testimony at trial that a permit was required. As explained by Robert Griswold, Plaintiff’s expert on the standard of care applicable to property owners, landlords, and tenants:

[A]s a planning commissioner and a property manager and landlord, I can tell you that I think you would need to apply for a permit. And a permit may or may not have been granted. It’s speculative. But they certainly would have had conditions. And I feel based on my 30 years experience, seven years as a planning commissioner, that there’s no way that this narrow sidewalk would be allowed to be converted to a shade structure and seating as it was being used without serious modifications and the elimination of those parking spaces, which ultimately were behind Mr. Powell when he was hit. That’s where the car came from was in that parking spot.

(Ex. 9, Testimony of Robert Griswold, p. 34:24-35:8). Not only did Naythan offer no evidence to refute this testimony, Naythan’s own expert architect, Diane Ballard, noted that the palapa poles were installed at the center of the 8-foot wide walkway, and that such installation would require a permit; but that no permit was issued (Ex. 2, pp. 15:24-27; 17:11-15). 7. Mr. Griswold testified that the location of the customer waiting area on the sidewalk, with parking spaces behind seated



people, with “spaces literally aiming in behind them,” plus vehicle overhang, creates a “red flag” (Ex. 9, p. 38:1-7). He stated, “I would say the conversion of the walkway or sidewalk to a shade covered structure with seating with an orientation being away from the vehicles coming into parking spaces behind you, all of those specific facts lead me to believe it’s a perfect storm for a dangerous condition to be created.” (Ex. 9, p. 51:10-16). 8. It is beyond dispute that but for Naythan’s allowance of the customer waiting area on the sidewalk on its commercial property, Mr. Powell would not have been sitting in that area on October 9, 2010, surrounded by traffic and in position to be struck by an out-of-control vehicle.

C. Naythan Failed to Produce Evidence at Trial to Support the Jury’s Finding That Naythan’s Negligence Was Not a Substantial Factor in Causing Mr. Powell’s Harm

As noted, the jury found that Naythan was negligent, in accordance with the jury instruction provided (CACI 400). However, it also found that Naythan’s negligence was not a substantial factor in causing harm to Mr. Powell. As a matter of law, the only way these two findings may be reconciled is through a concurrent finding that Naythan’s negligence was not a factor, or nothing more than a “remote or trivial factor,” in contributing to the harm suffered by Mr. Powell (CACI 430). Yet no evidence admitted at trial, let alone substantial evidence, could even arguably support such a finding; as reflected by a review of the full body of evidence adduced. Only two defense witnesses even touched upon the issue of whether Naythan’s acts and omissions were a substantial factor in causing Mr. Powell’s injury. Carl Beels, Naythan’s human factors and safety expert specializing in forensic accident investigations, did not testify at all on the specific issue of causation. He generally concluded that the sitting area was safe, noting that no other accidents had occurred at the location supported his conclusion (Ex. 8, p. 56:21-25). He also relied heavily on a report of the National Highway Traffic Safety Administration (NHTSA) to support his conclusions, particularly with regard to the alleged rarity of reported collisions caused by accidental acceleration in parking lot (Ex. 8, pp. 41:4-43:17). However, on cross examination, he admitted that the NHTSA study reflected an acknowledged underestimation of how often drivers mistake the accelerator for the brake pedal and a crash ensues, along with other flaws in this aspect of the analysis (Ex. 8, pp. 91:12-15, 91:27-93:6). Additionally, Mr. Beels made the following admission on recross examination, which is highly significant on the issue of whether Naythan created or maintained an unsafe condition on its property--a core issue in the substantial factor analysis: Q: “The issue here is whether or not this is a safe seating area here, right?” A: “Yes.” Q: “That’s our whole issue here, isn’t it?” A: “Yes.” (Ex. 8, p. 111:7-13). Architect Diane Ballard also failed to address the issue whether anything done or not done by Naythan was or was not a substantial factor in causing the accident. She tried to compare three outdoor sitting areas at other Temecula businesses to the one on Naythan’s property, but only checked to see that one of these was permitted. Moreover, it was revealed on cross-examination that the allegedly similar sitting area, at Hospitality Car Wash, had been permitted on the basis of plans showing parallel parking adjacent to the customer seating, not perpendicular parking--a fact that was concealed on Ms. Ballard’s “edited” version of the Hospitality plans (Ex. 2, pp. 28:19-30:1. 30:22-28, 34:25-35:11, 42:14-24, 43:3-8, 45:15-28). Ms. Ballard also admitted that if she were using the sitting area, she would not be likely to place her own chair in the two-foot area designated for vehicle overhang (Ex. 2, p. 54:6-17). Very clearly, neither of these witnesses’ testimony--nor that of any other witness, nor any item of physical evidence proffered by the defense, nor anything in the body of evidence admitted at trial--could reasonably be deemed to constitute substantial evidence that Naythan’s negligence was not a substantial factor in causing Mr. Powell’s harm. Whether viewed as individual parts or as a cumulative whole, no evidence can overcome the overwhelming evidence, supported by a solid foundation of



logic, that but for Naythan’s failure to exercise its right and duty to remove a dangerous condition from its commercial property, Mr. Powell would not have suffered the severe, permanent injuries he incurred, including the loss of his leg. Accordingly, and for the reasons to follow, JNOV should be granted in this matter.

III. ARGUMENT AND AUTHORITY

A. JNOV is Appropriate in This Case

A jury will, on occasion, render an inappropriate verdict either for a plaintiff or for a defendant. California Code of Civil Procedure § 629 provides in relevant part:

The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days’ notice, or on motion for a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.

Well-settled standards govern JNOV. When presented with a motion for JNOV, the trial court cannot weigh the evidence, or judge the credibility of witnesses. See Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110. “The purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury’s deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation.” Oakland Raiders v. Oakland-Alameda County Coliseum (2006) 144 Cal. App. 4th 1175, 1194; see also Sukoff v. Lemkin (4th App. Dist. 1988) 202 Cal. App. 3d 740, 743. “A motion for a directed verdict (or judgment notwithstanding the verdict) may be granted upon the motion of the plaintiff where, upon the whole evidence, the cause of action alleged in the complaint is supported, and no substantial support is given to the defense alleged by the defendant.” Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal. App. 2d 504, 515. “If the evidence will not support a verdict, the trial court has a duty to grant the motion for judgment notwithstanding the verdict.” Holcombe v. Burns (1960) 183 Cal. App. 2d 811, 814. “JNOV must be granted where, viewing the evidence in the light most favorable to the party securing the verdict, the evidence compels a verdict for the moving party as a matter of law.” Oakland Raiders, supra, 144 Cal. App. 4th at 1194. While the court must view all of the evidence in the light most favorable to the judgment, drawing every reasonable inference and resolving every conflict to the support the judgment; it must also bear in mind that “substantial evidence is not synonymous with ‘any’ evidence.” See Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 816. “[I]f the word ‘substantial’ means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with ‘any’ evidence. It must be reasonable in nature, credible, and of solid value; it must actually be ‘substantial’ proof of the essentials which the law requires in a particular case.” Krause v. Apodaca (1960) 186 Cal.App.2d 413, 418 (citing Estate of Teed (1952) 112 Cal.App.2d 638, 644); see also Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203-1204. “The focus is on the quality, rather than the quantity, of the evidence.” Roddenberry v. Roddenberry (1996) 44 Cal. App. 4th 634, 651. As the Roddenberry court observed:

Whatever the nature of the evidence, truth is an ascendant value in litigation. Not every bald assertion rises to the dignity of substantial evidence. Transparent prevarication is not an acceptable basis for decision. In an appropriate context such evidence may even be rejected summarily without trial. In every context, the courts must be diligent not to base an award on testimony tailored by financial expediency rather than by truth.

Id at 654. In determining whether there is substantial evidence of record to support a verdict, “...the ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record.” Carter v. CB Richard Ellis, Inc. (2004) 122 Cal. App. 4th 1313, 1328. While a party is entitled to have its evidence given all of its legal value and to have favorable inferences drawn therefrom, “the inferences must be logical and reasonable.” Knight v. Contracting Engineering Co. (1961) 194 Cal. App. 2d 435, 444. Any inferences to be drawn “must rest upon the evidence; inferences that



are the result of speculation or conjecture cannot support a finding.” Carter, supra, 122 al, App. 4th at 1328; see also Frank, supra, 149 Cal.App.4th at 816 (an inference “cannot be based upon suspicion, imagination, speculation, surmise, conjecture or guesswork”). Inferences made by a jury cannot stand when they are “rebutted by clear, positive and uncontradicted evidence of such a nature that it is not subject to doubt in the minds of reasonable men.” Beck Development Co., supra, 44 Cal.App.4th at 1204. Following a defense verdict, a court may order JNOV in a plaintiff’s favor on liability, and order a new trial on the issue of damages. Gordon, supra, 273 Cal. App. 2d at 515-516. A plaintiff’s motion for JNOV should be granted where a defense verdict is unsupportable as a matter of law, and the evidence requires a verdict in the plaintiff’s favor. Hauter, supra, 14 Cal. 3d at 111. In Hauter, the Court’s review of the record disclosed no evidence, nor any reasonable inference therefrom, to support the jury’s verdict for the defense--on the contrary, the evidence led to a conclusion that plaintiff’s should recover as a matter of law. “For that reason, the trial court properly granted plaintiffs’ motion for judgment notwithstanding the verdict.” Id at 111. Likewise, in Gordon, supra, 273 Cal. App. 2d at 515-516, the court found that causation was established as a matter of law, and there was no substantial evidence supporting the jury’s verdict for the defense; observing, “In passing upon the propriety of granting of the judgment notwithstanding the verdict, the doctrine that such judgment will be denied if there is a scintilla of conflict in the evidence has been rejected in this state.” Id at 515 (citations omitted). It concluded, “We have therefore concluded that under the whole of the evidence plaintiff’s motion for judgment notwithstanding the verdict should have been granted by the trial court.” This is such a case, and the same result should be reached here. Even if the old rule still applied, such that even a scintilla of evidence would be sufficient to defeat a motion for JNOV, Plaintiff’s motion would pass muster. As discussed below, there is no evidence, let alone substantial evidence, to support the jury’s verdict finding that Naythan’s negligence was not a substantial factor in causing Mr. Powell’s harm. Naythan presented no evidence, either direct or inferential, supporting such a conclusion. Again, overwhelming and undisputed evidence established that but for Naythan’s negligence in allowing a dangerous condition to persist on its property, Mr. Powell would not have suffered the catastrophic injuries he sustained.

B. As a Matter of Law, Naythan’s Negligence Was a Substantial Factor in Causing Mr. Powell’s Harm

“All a plaintiff need show to establish proximate or legal cause is that a defendant’s conduct in some way substantially contributed to the injury and that the circumstances are such that make it just to hold a defendant responsible for the consequences of the accident.” Bates v. John Deere Co. (1983) 148 Cal. App. 3d 40, 50 (emphasis added, quoting Valdez v. J. D. Diffenbaugh Co. (1975) 51 Cal. App. 3d 494). As the Valdez court explained, “...Valdez only had to demonstrate that but for a single negligent act by Diffenbaugh, he would have escaped injury.” Id at 508; see also Mayes v. Bryan (2006) 139 Cal. App. 4th 1075, 1096-1098 (explaining that the “substantial factor” test subsumes the “but for” test of causation; thus, a determination that the defendant’s negligence was a substantial factor in causing the plaintiffs injury necessarily included a conclusion that her injury would not have happened “but for” his negligence [citing CACI No. 430 and the accompanying instructions for use]). Uncontroverted evidence at trial proved that but for Naythan’s negligent failure to inspect, maintain, and control its property as required by law, Mr. Powell would not have been sitting in a dangerous, unpermitted sidewalk waiting area where he was struck by an out-of-control vehicle. Evidence at trial focused solely on the sitting area, and while Naythan tried to offer evidence that the area was safe (which evidence was impeached or shown irrelevant, as discussed above), it offered no evidence on causation. Nothing even suggested that the presence of this waiting area on the narrow sidewalk did not contribute to the harm that occurred-and the jury made a factual finding that Naythan was negligent. Thus, but for Naythan’s negligence, Mr Powell’s injury would not have happened. Again, Naythan does not dispute that it was aware of the sitting area on its property prior to the date of the accident, or that it took no steps to either remove or protect the area from the surrounding traffic, although it could have done so. That this negligence was a substantial factor in causing the harm may be determined as a matter of law. As observed by the Gordon Court, in holding that plaintiff’s JNOV motion should have been granted where there was no conflicting evidence as to proximate cause, “Proximate cause is legal cause, as distinguished from the layman’s notion of actual cause, and is always, in



the first instance, a question of law.” Id at 512. Gordon warrants particular attention here due to certain factual similarities between that case and the case at bar. In Gordon, the parents of a child who nearly drowned in a swimming pool at an apartment complex sued Strawther, the legal owner of the complex, and Big North, which had contracted to purchase the complex from Strawther. Big North was in possession and control of the complex at the time of the accident, but had not acquired legal title. When the jury found only the legal owner negligent, plaintiff’s sought an order of JNOV, which was denied. On appeal, the Court noted that both defendants had statutory and common law duties to secure the gates surrounding swimming pools in the complex. The evidence showed that both were aware of, and subject to, a city an ordinance requiring such gates to be secured, but both failed to do so while awaiting latches that were on order. The court observed, “The record is silent as to any action or effort by either Strawther or Big North to secure the gates during the interim between the date of ordering the latches from Los Angeles and the date of their actual delivery and installation. It was during this interim that the accident occurred to Kim Gordon” Id at 510. The Court emphasized that the fact that one of several defendants whose negligence contributes to an injury may be deemed more culpable than another does not exonerate the others from liability if their negligence was a cause of the harm suffered-and this may be determined as a matter of law. It explained:

While the court and jury could consider that there was some evidence pointing to either defendant Strawther or Big North being the more culpable, such conclusion would not exonerate either from liability. It is clear that the accident here was caused by the gate to the pool not being closed and the jury so found as against Strawther. It is also clear that the negligence of Strawther could not have exculpated Big North. It is basic that the negligence of a defendant need not be the sole cause. It is sufficient if it is a contributing cause.

Id at 512. In the present case, as in Gordon, the negligence of several defendants combined to create an accident waiting to happen--one which did happen, resulting in a tragic injury. The evidence adduced at trial proved that the negligence of each defendant played a substantial role in creating the circumstances that led to Mr. Powell’s injury. It is abundantly clear that as a matter of both logic and law, Mr. Powell would not have suffered the injuries he sustained if Naythan had not committed the acts and omissions that resulted in the jury’s finding it negligent. Thus, Naythan’s negligence was a substantial factor in causing his harm, as a matter of law.

C. No Evidence Suggests that Naythan’s Conduct Was a “Remote or Trivial Factor” in Causing the Harm Suffered by Mr. Powell

As noted, while a court ruling on a JNOV motion must accept the evidence most favorable to the opposing party as true and give it all the value to which it is legally entitled, a “mere scintilla of evidence” does not create a conflict for the jury’s resolution sufficient to defeat the motion. There must be “substantial evidence” to create the necessary conflict. Id at 515. In our case, no substantial evidence supporting the jury’s finding that Naythan’s negligent conduct was not a substantial factor in causing harm to Mr. Powell can be found in the record before the court. Defendant Naythan introduced little, if any, evidence directly addressing the issue of causation2 . Certainly, nothing in the evidence admitted at trial suggested that Naythan’s actions were but a “remote or trivial” cause of Mr. Powell’s harm. Again, but for its maintenance of the unsafe sitting area on its property, in contravention of its clearly established duties as a commercial landlord, this accident could not, and would not, have occurred. As a matter of law, a commercial landlord “...has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition.” Lopez v. Superior Court (1996) 45 Cal App. 4th 705, 715, quoting Portillo v. Aiassa (1994) 27 Cal. App. 4th 1125, 1134. Direct evidence at trial established that Naythan breached this duty, and that such breach was a substantial factor in causing the grave harm suffered by Mr. Powell. Naythan produced no substantial evidence to the contrary, and as noted, what little evidence Naythan did put forth on the general issue of how its acts and omissions impacted the resulting accident was impeached, discredited, or discounted by other testimonial or documentary evidence. Even though the jury is free to disregard evidence or testimony it does not find credible, it cannot disregard clear, positive and uncontradicted evidence that is not reasonably subject to doubt. Beck Development Co, supra, 44 Cal.App.4th at 1204. A measure of the liability must be apportioned to Naythan, as a matter of law--and in such a case, JNOV is properly granted. See Hauter, supra, 14 Cal. 3d at



111. 2

Perhaps tellingly, in closing argument, Naythan’s counsel failed to cite to evidence supporting his claim that Naythan’s conductwas not a substantial factor in causing Mr. Powell’s injury, but merely made the general argument, “The third question is, if you think we’re negligent, was our negligence a substantial factor and cause of the incident? I don’t think so.” See Ex. 10 (Transcript of Defendant’s closing argument p. 61:19-21). Counsel then inappropriately urged the jury to make such a finding as a time-saving measure, stating, “If my client is not a substantial factor in causing the accident, you don’t have to fill out anymore. You only getto damages if you find that my client had some small percentage of responsibility, and then you’re going to have to figure out these economic damages” (Ex. 10 p. 70:7-12).

IV. CONCLUSION: THIS COURT SHOULD ENTER AN ORDER GRANTING JNOV ON THE ISSUE OF NAYTHAN’S LIABILITY TO MR. POWELL

This case resulted in a clear miscarriage of justice. The evidence of record leads to one inescapable conclusion: But for Naythan’s conversion of the sidewalk to an unsafe, unpermitted seating area, Richard Powell would not have been sitting at that location on Naythan’s property on October 9, 2010, and would not have suffered the harm he incurred (and will continue to incur for the rest of his life). Uncontroverted evidence established that Naythan’s negligence was a substantial factor that contributed to Mr. Powell’s injury, and the jury’s finding to the contrary is inconsistent with both logic and law. This court has the power to rectify this grave injustice, and should exercise that power. Accordingly, Plaintiff respectfully requests the Court issue an Order of judgment notwithstanding the verdict pursuant to Code of Civil Procedure (CCP) § 629. Dated: September 11, 2012 Respectfully Submitted, THE ZUCKER LAW FIRM, P.C. By: <<signature>> ANDREW J. ZUCKER Attorney for Plaintiff Richard A. Powell

End of Document


Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Ari...


Filings (24)














7. Plaintiff Richard A. Powell’s Issue Brief re Defendant Naythan Properties LLC’s Special Jury Instruction No. 2





Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes; and Does 1 through 50, inclusive, Defendants. 2012 WL 6630777










































New Trial Denied by






Title Court Date











Special Verdict Form Richard A. POWELL, Plaintiff, v. NAYTHAN PROPERTIES, LLC, Defendant. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:


Richard A. POWELL, Plaintiff, v. NAYTHAN PROPERTIES,..., 2012 WL 6626871...





NAYTHAN PROPERTIES, LLC, Defendant.

No. 37-2011-0055117-CU-PO-NC. July 19, 2012.

Special Verdict Form


[Proposed] We, the jury, answer the questions submitted to us as follows: 1. Did Naythan Properties LLC own or control the property at 44260 Apis Road, Temecula, California? X YES

_____ NO

If your answer to Question No. I is “Yes”, then answer Question No. 2. If you answered “No”, stop here, answer no further questions, and have the presiding juror sign and dale this form. 2. Was Naythan Properties LLC negligent in the use, maintenance or management of the property? X YES

_____ NO

If your answer to Question No. 2 is “Yes”, then answer Question No. 3. If you answered “No”, stop here, answer no further questions, and have the presiding juror sign and date this form. 3. Was Naythan Properties LLC’s negligence a substantial factor in causing harm to Richard Powell? y(5)6D YES

X NO



If your answer to Question No. 3 is “Yes”, then answer Question No. 4. If you answered “No”, stop here, answer no further questions, and have the presiding juror sign and date this form. 4. What are Richard Powell’s total damages? Do not reduce the damages based on the fault, if any, of others. a.

Past economic loss:

Past lost income/earnings

$ __________

Past medical expenses

$ __________

Past loss of household services

$ __________

Other past economic loss

$ __________

Total Past Economic Damages:

$ __________

b.

Future economic loss:

Future lost income/earnings

$ __________

Future medical expenses

$ __________

Future loss of household services

$ __________

Other future economic loss

$ __________

Total Future Economic Damages:

$ __________

c.

Past noneconomic loss, including physical pain and disfigurement/mental suffering:

$ __________

d.

Future noneconomic loss, including physical pain and disfigurement/mental suffering:

$ __________

TOTAL DAMAGES:

$ __________

5. Was Redhawk Hand Car Wash negligent? _____ YES

_____ NO

If your answer to Question No. 5 is “Yes”, then answer Question No. 6. If you answered “No”. insert the number zero next to Redhawk Hand Car Wash’s name in Question No. 11, and then answer



Question No. 6. 6. Was Redhawk Hand Car Wash’s negligence a substantial factor in causing Richard Powell’s harm? _____ YES

_____ NO

If your answer to Question No. 6 is “Yes”, then answer Question No. 7 If you answered “No”, insert the number zero next to Redhawk Hand Car Wash’s name in Question No. 11, and then answer Question No. 7. 7. Was Aris Pepes negligent? _____ YES

_____ NO

If your answer to Question No. 7 is “Yes”, then answer Question No. 8. If you answered “No”, insert the number zero next to Aris Pepes’ name in Question No. II, and then answer Question No. 9. 8. Was Aris Pepes’ negligence a substantial factor in causing Richard Powell’s harm? _____ YES

_____ NO

If your answer to Question No. 8 is “Yes”, then answer Question No. 9. If you answered “No”, insert the number zero next to Aris Pepes’ name in Question No. 11, and then answer Question No. 9. 9. Were “Others” negligent? _____ YES

_____ NO

If your answer to Question No. 9 is “Yes”, then answer Question No. 10. If you answered “No”, insert the number zero next to “Other” in Question No. 11, and then finish answering Question No. 11. 10. Were “Others” negligence a substantial factor in causing Richard Powell’s harm?



_____ YES

_____ NO

If your answer to Question No. 10 is “Yes”, then answer Question No. 11. If you answered “No”, insert the number zero next to “Other” in Question No. 11, and then finish answering Question No. 11. 11. What percentage of responsibility for Richard Powell’s harm do you assign to the following? Insert a percentage for only those who received “Yes” answers in Question Nos. 3, 6, 8 or 10: Naythan Properties LLC:

__________ %

Redhawk Hand Car Wash:

__________ %

Aris Pepes:

__________ %

Other:

__________ %

TOTAL:

100 %

Dated: July 19th, 2012 Signed:<<signature>> Presiding Juror After this Special Verdict Form has been signed, notify the court attendant that you are ready to present the Jury’s verdict in the courtroom.

End of Document


Richard A. POWELL, Plaintiff, v. NAYTHAN PROPERTIES, LLC, Defendant.


Filings (24)














7. Plaintiff’s Points and Authorities in Support of Motion for Judgment Notwithstanding the Verdict Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH;





Naythan Properties, LLC; Aris Pepes, and Does 1 to 50, Defendants. 2012 WL 6630779

8. Plaintiff Richard A. Powell’s Issue Brief re Defendant Naythan Properties LLC’s Special Jury Instruction No. 2 Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes; and Does 1 through 50, inclusive, Defendants. 2012 WL 6630777








































Direct History (2)

1. Powell v. Redhawk Hand Car Wash 2012 WL 6650291 , Cal.Super. , Aug. 23, 2012

New Trial Denied by






Title Court Date








Plaintiff Richard A. Powell’s Issue Brief re Defendant Naythan Properties LLC’s Special Jury Instruction No. 2 Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes; and Does 1 through 50, inclusive, Defendants. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:







REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes; and Does 1 through 50, inclusive, Defendants.

No. 37-2011-0055117-CU-PO-NC. July 13, 2012.

Plaintiff Richard A. Powell’s Issue Brief re Defendant Naythan Properties LLC’s Special Jury Instruction No. 2

Andrew J. Zucker, SBN 167348, The Zucker Law Firm, P.C., 43434 Business Park Drive, Temecula, CA 92590, Tele: 951-699-2100 / Fax: 951-699-2102.

Suzanne H. Mindlin, SBN 182237, P. O. Box 9, Cardiff by the Sea, CA 92007, Tele: 760-822-8908 / Fax: 760-454-7389, Attorney for Plaintiff Richard A. Powell.

Hon. Earl H. Maas, III. TRIAL: June 29, 2012 TIME: 8:30 a.m. DEPT: N-28 Plaintiff RICHARD A. POWELL submits the following Issue Brief in opposition to Defendant NAYTHAN PROPERTIES LLC’s Proposed Special Jury Instruction No. 2. The proposed Special Jury Instruction No. 2 states: The possessor of property has no duty to control a third person’s conduct which the possessor of property has no reason to anticipate and no reasonable opportunity or means to prevent from occurring. Rodgers v. Jones (1976) 56 Cal.App.3d 346, 351; Sturgeon v. Curnutt (1994) 29 Cal.4th 301,307.1

1

Defendant has incorrectly cited the Sturgeon case as a California Supreme Court ruling. The correct citation is 2 Cal.App.4th 301 (Third District).

First, and foremost, Rodgers v. Jones and Sturgeon v. Curnutt both deal with “intentional and criminal” and “violent” conduct of a third person to support such an instruction where there were no prior similar incidents. Although there is no prior similar incidents, there has been no evidence in this case of criminal conduct by any party or third person. Rogers v. Jones deals with intentional and criminal conduct that the court held more or less “intervened” with the landlord’s duty to control and maintain its property. That intentional and criminal conduct could not be foreseen in the scope of Rowland v Christian, i.e., criminal conduct of third persons. That is distinguishable from the within matter, where Plaintiff MR. POWELL contends that Defendant NAYTHAN PROPERTIES has the duty, as owner, to control and manage its property and to protect persons who come on the property in the course of NAYTHAN PROPERTIES’ operation of the parking/customer waiting area from “unreasonable risk of harm”.



As operator of the stadium parking lot, defendant Jones owed a general duty to exercise ordinary care in the management of the premises to avoid exposing persons who came upon the property in the course of its operation of the parking lot to the unreasonable risk of harm (Rowland v. Christian, 69 Cal.2d 108, 118; [Citations]. This general duty arose from the fact that Jones, at the time of the incident complained of, was the [owner] of the premises with the right to control and manage the property. (Rogers v. Jones, supra, 56 Cal.App.3d at p. 350.)

Rogers affirms the basic general duty to keep the property free from dangerous and defective conditions. When NAYTHAN PROPERTIES, as here, “creates” a defective condition or fails to exercise reasonable care in controlling its property, “the question of foreseeability of harm” to a third person is “more easily assessed”. (Rogers v. Jones, supra, 56 Cal.App.3d at p. 351, citing Weirum v. RKO Gen’l, Inc. (1975) 15 Cal.3d 40, 47.) Rogers moved outside the basic general duty because there was criminal conduct (assault and battery) that broke the chain of foreseeability adversely to the plaintiff as a matter of law. When the harm results from a sudden, intentional, malicious and criminal act of a third party, anticipation of harm as well as a reasonable opportunity to prevent its occurrence may approach the impossible. The third party conduct which directly caused plaintiff’s injury in this case was sudden, intentional and criminal, and [defendant parking operator] had no reasonable opportunity either to anticipate or prevent it. (Rogers v. Jones, supra, 56 Cal.App.3d at p. 351.) There is no criminal conduct here and NAYTHAN PROPERTIES’ proposed Special Jury Instruction No. 2 is outside the bounds of the evidence. Further, Rogers v. Jones has been disapproved by the California Supreme Court in the leading case of Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112. The California Supreme Court struck down a line of cases, that includes Rogers, on the grounds that setting up barriers to the jury determining liability when there are no prior incidents “leads to results which are contrary to public policy. The rule has the effect of discouraging landowners from taking adequate measures to protect premises which they know are dangerous. This result contravenes the policy of preventing future harm. Moreover, under the rule, the first victim always loses, while subsequent victims are permitted recovery. Such a result is not only unfair, but is inimical to the important policy of compensating injured parties.” (Id. at p. 125.) Quite applicable herein, the California Supreme Court in Isaacs held: There is a general reluctance to remove foreseeability questions from the jury. [Citation.] Foreseeability “ ‘is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.’ One may be held accountable for creating even “the risk of a slight possibility of injury if a reasonably prudent [person] would not do so.” ‘ ” (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 57.) (Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at p. 126.) Regarding Sturgeon v. Curnett, the case does not apply to the facts presented in this matter. In Sturgeon, the plaintiff visited a friend’s home that was owned by the friend’s parents. The plaintiff sued the friend’s parents (property owners) after their son (tenant) accidently fired a weapon and injured the plaintiff. The evidence established that the parents knew that their tenant/son kept firearms on the premises and had a drinking problem; however, there was no evidence their son had violent propensities or handled firearms unsafely even when drinking or that any dangerous physical condition existed at the home. The court held that it was not reasonably foreseeable that the tenant/son’s conduct would harm anyone visiting his home given the absence of any evidence of a dangerous condition. (Sturgeon v. Curnett, supra, 29 Cal.App.4th at p. 307.) Sturgeon does not address the duty of a commercial property owner, such as NAYTHAN PROPERTIES, or the “setting of modern life that a reasonably prudent person would take into account practical conduct” for business invitees. Moreover, Sturgeon cites to the same California Supreme Court quote in Bigbee, above, and which the Court went back to in Isaacs. Here, there is no violent or criminal conduct to warrant this instruction based on NAYTHAN PROPERTIES’ own offered



legal authority and the evidence of a dangerous physical condition on NAYTHAN PROPERTIES’ premises. Defendant NAYTHAN PROPERTIES’ proposed Special Jury Instruction No. 2 usurps the jury’s consideration of“foreseeability” that the California Supreme Court upheld in Isaacs v. Huntington Memorial Hospital, thereby disapproving and nulling Rogers. The mere fact that a particular kind of accident involving a third person on the property has not happened before does not show that such accident is one which might not reasonably have been anticipated. Thus, the fortuitous absence of prior injury does not justify relieving NAYTHAN PROPERTIES from responsibility for the foreseeable consequences of its acts in failing to take a reasonable opportunity and use practical conduct to be held accountable for creating even the slight possibility of injury as the controlling landlord and property owner. Dated: July 13, 2012 Respectfully submitted, THE ZUCKER LAW FIRM, P.C. By: <<signature>> ANDREW J. ZUCKER Attorney for Plaintiff Richard A. Powell

End of Document


Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Ar...


Filings (24)








































18. 2012 WL 6927387, 3 Trials Digest 16th 17 — Cal.Super. Aug. 23, 2012 Expert Court




Powell vs. Redhawk Hand Car Wash Document

















New Trial Denied by






Title Court Date











Plaintiff’s Brief on Exclusion of Inadmissible Trial Exhibits Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes, and Does 1 to 50, Defendants. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:








No. 37-2011-00055117-CU-PO-NC. July 5, 2012.

Plaintiff’s Brief on Exclusion of Inadmissible Trial Exhibits

Andrew J. Zucker, Esq. CSB 167348, The Zucker Law Firm, P.C., 43434 Business Park Drive, Temecula, CA 92590, Tele: 951-699-2100 / Fax: 951-699-2102.

Suzanne H. Mindlin, SBN 182237, P. O. Box 9, Cardiff by the Sea, CA 92007, Tele: 760-822-8908, Attorneys for Plaintiff Richard. A. Powell.


Complaint Filed: June 7, 2011 Trial Date: June 29, 2012 Plaintiff RICHARD A. POWELL (“Powell”) hereby submits his brief in support of the exclusion of certain exhibits listed by Defendant Naythan Properties, LLC (“Naythan”) as set forth below. These exhibits are improper and inadmissible and should therefore be excluded on the grounds set forth with reference to each Exhibit or group of Exhibits at issue.

I. Preliminary Matters

Objections to evidence may be raised at any stage of the proceedings. Evidentiary objections to proffered trial exhibits may be made by a motion in limine before trial, or by oral or written motion during trial, or when a party attempts to introduce inadmissible materials as evidence. See, e.g. Boston v. Penny Lane Centers, Inc. (2009) 170 Cal. App. 4th 936, 950 (a motion in limine to exclude evidence may be made before or during trial, when the trial judge can determine the evidentiary question in its appropriate context [citing People v. Morris (1991) 53 Cal. 3d 152,190]); Conservatorship of Manton (1985) 39 Cal. 3d 645, 648, 652 (objection made at trial to report by conservatorship investigator that contained “gross hearsay,” which was not subject to any exception, should have been sustained; and court’s failure to do so was highly prejudicial, requiring reversal). Motions made before the evidence is offered in the presence of the jury are favored. “The purpose of the motion 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.” Ulloa v. McMillan Real Estate & Mortgage, Inc. (4th App. Dist. 2007) 149 Cal. App. 4th 333, 337-338, quoting Clemens v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451. Substantial justice requires that inadmissible evidence be precluded upon the opposing party’s objection, so long as the objection is made before the evidence is admitted.

II. Objections to Specific Exhibits Listed by Defendants:



A. Defendant’s Exhibits No. 1058-1074: Records and Billings From Plaintiff’s Cardiologist

Defendant seeks to introduce a collection of medical records, billings, and other documents from Plaintiff’s former cardiologist, Babak Tashakkor, M.D. Dr. Tashakkor is not expected to testify in the trial; he was not listed among Defendant’s witnesses. If he testifies, Dr. Tashakkor will be testifying only as a percipient witness, not as an expert. The materials at issue should therefore be excluded on the following grounds:

1). Inadmissible Opinion Testimony/Hearsay

Evidence Code (EC) § 800 provides: “If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: (a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony.” Plaintiff anticipates that Defendant will seek to introduce Dr. Tashakkor’s reports as substantive evidence of the medical history, opinions, and observations stated in such records. This is inappropriate. See People v. Williams (1960) 187 Cal. App. 2d 355, 365 (A history given by a patient to his physician is admissible only as a basis for the expert opinion of the physician, and never as substantive proof of the facts so stated; and the same rule applies to statements in a hospital record). Additionally, such records amount to inadmissible hearsay under EC§ 1200. While hospital records are often admissible under the business records exception to the hearsay rule (EC § 1271), this exception only applies if a custodian of records or other duly qualified witness satisfies the requirements of the exception. See Garibay v. Hemmat (2008) 161 Cal. App. 4th 735, 742. As explained in People v. Khaled (2010) 186 Cal. App. 4th Supp. 1, 8, under the business records exception, the proponent of the document’s admission has the burden of establishing the requirements of admission and trustworthiness of the information. To show the proper foundation for admission of a business record, the appropriate witness must lay that foundation, showing firsthand knowledge of the business’s record keeping procedures. If the evidence fails to establish each foundational fact in EC § 1271, the hearsay exception is inapplicable, and without such a foundation, admission is erroneous (emphasis added). EC § 1271 provides: Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness. These requirements cannot be met with respect to the Exhibits at issue. Nor, it should be emphasized, may the testimony of an expert who relied on hearsay records in formulating his or her opinion be used to circumvent these mandates. “A witness’s on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible material into ‘independent proof’ of any fact.” Garibay, supra, 161 Cal. App. 4th at 743, citing Korsak v. Atlas Hotels, Inc. (4th App. Dist. 1992) 2 Cal. App. 4th 1516, 1524-1525 (other citations omitted).

2). Irrelevant:

Dr. Tashakkor’s reports deal with the state of the Plaintiff’s cardiac health in the past, prior to the date of the incident giving rise to this litigation. Accordingly, they have no relevance to any issue before the court. California Evidence Code (EC) § 210



provides, “Relevant evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” EC § 350 states, “No evidence is admissible except relevant evidence.” Relevant evidence must tend logically, naturally, and by reasonable inference to establish a material fact. Brokopp v. Ford Motor Co. (1977) 71 Cal. App. 3d 841, 853. As the court explained in Cota v. County of Los Angeles (1980) 105 Cal. App. 3d 282, 293, evidence that is not pertinent to the issues raised by the pleadings is immaterial, and it is error to allow the introduction of such evidence. As explained in Marciela C. V. Superior Court (1998) 66 Cal. App. 4th 1138, 1146, “[a litigant’s] due process right to present evidence is limited to relevant evidence of significant probative value to the issues before the court.” To the extent that the present state of Plaintiff’s health, including his cardiac condition, may be relevant to any issue; this topic has been addressed by the expert physicians for both sides who have examined the Plaintiff, reviewed his medical history (including Dr. Tashakkor’s records), and rendered opinions on which they are expected to testify at trial, subject to appropriate cross-examination. The findings of these physicians have been made available to other experts who will testify on issues including life care planning and loss of future earnings. Reports (and billing records) of Plaintiff’s treating cardiologist have no relevance to these issues, and would only serve to interject duplicative and irrelevant matters into an already complex case.

3). Unduly Time Consuming/Cumulative/Confusing/Prejudicial:

Under Evidence Code § 352, “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.” Here, Plaintiff seeks to admit evidence which contravenes all of the prohibitions of § 352. Such evidence would undoubtedly be highly prejudicial, as well as confusing, misleading, and a waste of time; while having no relevance or probative value whatsoever. Plaintiff anticipates that the defense will attempt to use the records of Dr. Tashakkor to inaccurately suggest that Plaintiff’s cardiac condition prior to the incident adversely affected his life expectancy, work life expectancy, and/or earning capacity. Again, these issues must be left to experts who are qualified in the specialty of cardiology. No cardiologist is expected to testify in the case. The interjection of the records themselves, out of context, would serve only to confuse the jury and overload it with irrelevant and cumulative information. As stated in Gibbs v. American Airlines (1999) 74 Cal. App. 4th 1, 14, “By enacting Evidence Code § 352, the Legislature gave the court the means to facilitate judicial economy.” Most importantly, it would unfairly draw unwarranted attention to Plaintiff’s cardiac history, at most a collateral issue in this case, to his prejudice. In short, evidence of this nature would not aid the jury in determining any ultimate issue in this case--but it would inevitably result in exactly what EC § 352 seeks to avoid. These records and billings should be excluded in their entirety.

B. Defendants’ Exhibits No. 1075-1077: Hospital Notes from Inland Valley Medical Center

Defendants also seek to introduce notes from Plaintiff’s medical records taken at the time he was admitted to Inland Valley Medical Center following the accident. For essentially the same reasons Dr. Tashakkor’s records are inadmissible and should be excluded from evidence, these notes should also be excluded. The notes are hearsay, and without a witness to authenticate and provide a foundation for their admission, they are not admissible under the business records exception (EC §§ 1271). See Garibay, supra, 161 Cal. App. 4th at 742. The matters they address will be covered in the appropriate context by Tito Gorski, M.D., the treating surgeon, and their admission would be cumulative, prejudicial, and a waste of time in violation of EC § 352. Accordingly, these records should be excluded.

C. Defendant’s Exhibits No. 1154-1155,1159, and 1159: Miscellaneous Materials From Unidentified Sources

Plaintiff requests the exclusion of Defendants’ Exhibit No. 1108-1117 (materials discussing benefits from the Social Security



and Veterans Administrations); 1154 (“Social Security research regarding definitions...”); 1155 (“California Unemployment-Research Regarding Eligibility for Claims...”); 1157 (“Earnings by Education Statistics--showing decline in earnings as one ages”); and 1159 (“Multaq Information [Xitco]”). The source of these documents is not specified, but all appear to be materials that were downloaded from Internet web sites. Plaintiff objects to these documents as follows:

1). Lack of Foundation/Authenticity

Under Evidence Code (EC) § 1400, “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” Authentication of a writing is required before the writing, or secondary evidence of its contents, may be received into evidence (EC §§ 1401 (a)). Documentary evidence that is offered without a foundation to establish its authenticity is inadmissible under EC § 403. Even where a party or witness purports to have knowledge of such evidence, a bare conclusionary statement that the facts asserted are within the declarant’s knowledge does not fulfill the requirement that a foundation be established if the evidentiary facts set forth in the declaration do not show the requisite personal knowledge. See Maltby v. Shook (1955) 131 Cal. App. 2d 349, 353; Buehler v. Alpha Beta Co. (1990) 224 Cal. App. 3d 729, 733. The evidence at issue here appears to consist of statements printed from Internet sites not owned by, or within the personal knowledge of, any defense witness qualified to authenticate such materials. Accordingly, they lack the requisite authenticity and foundation required for admissibility

2). Hearsay

Each of these exhibits also constitute inadmissible hearsay statements under EC §§ 1200, and none fit within any of the exceptions to the hearsay rule. EC § 1200 provides in relevant part, “(a) ‘Hearsay evidence’ is evidence of a statement that was made other than by witness, while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible.” An item of purported evidence may constitute hearsay, in whatever form it is presented. EC § 225 defines a “statement” as “... (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.” EC § 250 defines a “writing” to include: “... handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” The hearsay rules have been held applicable to information printed from Internet sources. See Knapp v. Dougherty (2004) 123 Cal. App. 4th 76, 101-102 (information obtained from the Internet that was not authenticated and lacked foundation was “clearly inadmissible hearsay”). Moreover, as noted above, the fact that an expert may have relied on something in forming his or her opinion does not make it admissible if the item is hearsay. See EC § 804(c). In Korsak v. Atlas Hotels, Inc. (4th App. Dist. 1992) 2 Cal. App. 4th 1516, a case brought by a hotel guest injured when a shower head became detached, it was held that the trial court abused its discretion by allowing the plaintiff’s expert to testify, on direct examination, as to incompetent hearsay evidence of an informal survey the expert conducted about hotel maintenance practices. Courts are obligated to require an adequate foundation for expert testimony. Id at 1523. While hearsay information of a type reasonably relied upon by professionals in the field in forming an opinion on the subject may be used to support an expert opinion, even though not admissible in court (provided such information is reliable and not speculative or conjectural), “...rules governing actual communication to the jury of any hearsay matter reasonably relied on



by an expert are more restrictive. Although experts may properly rely on hearsay in forming their opinions, they may not relate the out-of-court statements of another as independent proof of the fact.” Id at 1524-1525. The Korsak court further explained, “Although an expert ‘may rely on inadmissible hearsay in forming his or her opinion [citation], and may state on direct examination the matters on which he or she relied, the expert may not testify as to the details of those matters if they are otherwise inadmissible [citation].’ ” Id at 1525, quoting Continental Airlines, Inc. v. McDonnel Douglas Corp. (1989) 216 Cal. App. 3d 388, 415. It observed that in People v. Coleman (1985) 38 Cal. 3d 69, 95, the Supreme Court said with regard to an expert witness that “... he may not under the guise of reasons bring before the jury incompetent hearsay evidence.” Id. The Korsak court held that the trial court abused its discretion in permitting the jury to consider the hearsay evidence presented by the expert in connection with proof of the matter asserted, resulting in prejudice to the defendant, which required reversal. Id at 1525-1526, citing Coleman, supra at 92. It noted that EC § 804 generally provides an opposing party the opportunity to cross-examine persons on whose opinions the testifying expert relied. None of the materials at issue here fall within any of the applicable exceptions to the hearsay rule. Rather, they appear to be precisely the type of unauthenticated and unreliable materials the hearsay rule was designed to exclude, for which the proponent cannot establish the applicability of any exception allowing their admission. See, e.g. People v. Khaled (2010) 186 Cal. App. 4th Supp. 1, 8 (proponent of a document’s admission under the business records exception had the burden of establishing the trustworthiness of the information; where the evidence failed to establish each foundational fact in EC § 1271, the hearsay exception was inapplicable, and without such a foundation admission is erroneous); Sanchez v. Hillerich & Brodsky Co. (2002) 104 Cal. App. 4th 703, 720 (where declarant did not provide a foundation for admission of records, nor any evidence as to how reports offered as exhibits were prepared, nor upon what sources of information they were based, nor any evidence that they were trustworthy; the exhibits could not be admitted as business records). The same may be said of the documents at issue here, and the same result should be reached. Dated: July 2, 2012 Respectfully Submitted, THE ZUCKER LAW FIRM, P.C. By: <<signature>> SUZANNE H. MINDLIN Co-counsel for Plaintiff Richard A. Powell

End of Document




Filings (24)





























































New Trial Denied by






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Plaintiff’s Brief on Admissibility of Percipient Witness Opinion Testimony Richard A. POWELL, Plaintiff, v. REDHAWK CAR WASH; Naythan Properties, LLC; Aris Pepes, and Does 1 to 50, Defendants. | Superior Court of California Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:








No. 37-2011-00055117-CU-PO-NC. July 3, 2012.

Plaintiff’s Brief on Admissibility of Percipient Witness Opinion Testimony

Andrew J. Zucker, Esq. CSB 167348, The Zucker Law Firm, P.C., 43434 Business Park Drive, Temecula, CA 92590, Tele: 951-699-2100 / Fax: 951-699-2102, Attorney for Plaintiff Richard. A. Powell.


Complaint Filed: June 7, 2011 Trial Date: June 29, 2012 Plaintiff RICHARD A. POWELL (“Powell”) hereby submits his brief on the admissibility of opinion testimony by percipient witnesses. Powell seeks to admit the opinions of several percipient witnesses as to whether they felt it was safe to sit in the location where the incident that is the subject of this litigation occurred, and anticipates that the defense will object to such testimony. However, the testimony is fully admissible under well-established California law, and should be allowed. Lay opinion is admissible if based on the witness’s own perceptions and helpful to understanding the witness’s testimony. Castillo v. Toll Bros., Inc. (2011) 197 Cal. App. 4th 1172,1199; citing Evid. Code § 800. This rule has long been applied to permit the admission of percipient witness opinion testimony in a broad range of cases. See, e.g. Castillo, supra (in a wage and hour action alleging contractual insufficiency, testimony by a subcontractor’s principles stating their opinions that the contract’s prices were sufficient was held admissible because it was based on their perception and experience, directly related to their work on the matter before the court, and was helpful in summarizing their testimony); People v. Lucero (1998) 64 Cal. App. 4th 1107 (non-expert police officer could give his opinion as to whether a shoe and shoeprint matched based on comparison of the two); People v. Maglaya (2003) 112 Cal. App. 4th 1604, 1608 (same, noting that comparison of shoes and footprints was rationally based on the witness’s perception); Rash v. City and County of San Francisco (1962) 200 Cal. App. 2d 199 (person with opportunity to observe the speed of moving vehicles is qualified to give opinion by general statements such as “very fast,” citing Jordan v. Great Western Motorways (1931) 213 Cal. 606, 612); People v. Garcia (1972) 27 Cal. App. 3d 639, 643 (layperson may give opinion testimony regarding whether another person was intoxicated); People v. Farnham (2002) 28 Cal. 4th 107, 153 (laypersons’ opinion that the defendant looked like he was ready to fight was within common experience, based on personal observation, and therefore admissible); People v. Gurule (2002) 28 Cal. 4th 557, 621 (witness was properly allowed to offer an opinion that the defendant did not appear distracted or hesitant during an interview). Of special interest here is Osborne v. Mission Ready Mix (4th App. Dist. 1990) 224 Cal. App. 3d 104, 112-113. In that case, involving a trip-and-fall injury at a construction site, the court held that plaintiff’s opinion regarding whether a trip hazard was open and obvious, based on personal observation, was admissible. Citing Evid. Code § 800, it began by stating the general principle that “...opinion testimony by a lay witness is admissible if it is based on the witness’s perception and helpful to a clear understanding of the witness’s testimony.” Id at 112. Applying this rule to the facts before it, the court explained:



Here, whether the nature of the potential danger was obvious or not was a matter which could best be described to the jury by way of opinion testimony. A recitation of the size of the area, the depth and quality of the dirt, the size of the concrete pieces and whether and in what proportion they were totally exposed, completely hidden, or partially embedded in the dirt could be made, but, in our opinion, such facts alone would not make the obviousness of the risk involved so palpable to the jury that its means of forming an opinion would be practically equal to those of the witness.

Id at 113. It went on to observe that the testimony that the condition was open and obvious was not simply a statement of opinion, but, because it was elicited from a percipient witness, it was also statement of sensory observation-- that the witness was able to see and appreciate the nature of the area. Id at 113. The same is true of the testimony at issue here. Witnesses who observed the condition of the area where the incident occurred, on the day it happened, are fully qualified to state their opinions--based on their observations and perceptions--as to whether or not the area appeared safe for sitting. Here, as in Osborne, limiting these witnesses to a statement of bare facts describing the area would be insufficient and inappropriate. The testimony at issue is based entirely on the rational perception of these witnesses, within common experience, and will be helpful to give the jury a clear understanding of the facts to which they will testify. Accordingly, under Evid. Code § 800, Osborne, supra, and the other authority cited above, such testimony is proper and wholly admissible for the purpose for which it is proffered. WHEREFORE Plaintiff Richard A. Powell respectfully requests the Court admit the testimony at issue, as permitted by the authority set forth above. Dated: July 3, 2012 Respectfully Submitted, THE ZUCKER LAW FIRM, P.C. By: __________ ANDREW J. ZUCKER Attorney for Plaintiff Richard A. Powell

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New Trial Denied by






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