Preview
1 Krsto Mijanovic (Bar No. 205060)
kmijanovic@hbblaw.com
2 Lisa T. Omoto (Bar No. 303830) ELECTRONICALLY
lomoto@hbblaw.com
3 HAIGHT BROWN & BONESTEEL LLP F I L E D
Superior Court of California,
555 South Flower Street, Forty-Fifth Floor County of San Francisco
4 Los Angeles, California 90071
Telephone: 213.542.8000 08/19/2021
Clerk of the Court
5 Facsimile: 213.542.8100 BY: EDNALEEN ALEGRE
Deputy Clerk
6 Attorneys for Defendants SHERMAN LEWIS
WRIGHT, FORD MOTOR COMPANY, and
7 CHARIOT TRANSIT, INC.
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
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11 DAVID NGUYEN, Case No. CGC-19-576056
12 Plaintiff, Assigned for All Purposes to:
Hon. Garrett L. Wong, Dept. 206
13 v.
DEFENDANTS’ RESPONSE TO
14 SHERMAN LEWIS WRIGHT, FORD PLAINTIFF’S OBJECTIONS TO
MOTOR COMPANY, CHARIOT TRANSIT, EVIDENCE IN SUPPORT OF MOTION
15 INC., and DOES 1 to 30, FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, SUMMARY
16 Defendants. ADJUDICATION
17 [Filed Concurrently with Reply to Plaintiff’s
Opposition to Motion for Summary Judgment;
18 Reply to Plaintiff’s Opposition to Separate
Statement of Undisputed Material Facts and
19 Response to Plaintiff’s Separate Statement of
Additional Undisputed Material Facts;
20 Objections to Plaintiff’s Evidence; Declaration
of Lisa T. Omoto]
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Date: August 24, 2021
22 Time: 9:30 a.m.
Dept.: 302
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Action Filed: May 16, 2019
24 Trial Date: January 3, 2022
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PS27-0000012 1
13874973.1 RESPONSE TO PLAINTIFF’S OBJECTIONS TO EVIDENCE
1 I. INTRODUCTION
2 Pursuant to Code of Civil Procedure Section 437c and California Rules of Court, Rule
3 3.1354, Defendants SHERMAN LEWIS WRIGHT, FORD MOTOR COMPANY, and CHARIOT
4 TRANSIT, INC. (collectively, “Defendants”) hereby respond to Plaintiff DAVID NGUYEN’s
5 (“Plaintiff”) objections to evidence submitted by Defendants in support of their Motion for
6 Summary Judgment or, in the alternative, Summary Adjudication.
7 Objection No. 1
8 Declaration of Sherman Lewis Wright.
9 "Attached hereto as Exhibit 'B' is a true and correct copy of the dash camera recording of
10 the subject incident .... it fairly and accurately depicts the Subject Intersection end the scene of the
11 accident as they existed at the time of the subject accident. The recording fairly and accurately
12 shows a simultaneous side-by-side view of both the interior and exterior of the vehicle I was
13 driving at the time of the subject accident, and the scene of the accident.”
14 Grounds for Objection No. 1: Courts are authorized to exclude any evidence which is not
15 properly disclosed during the discovery process. See CCP §2023.030(c); see also Thoren v.
16 Johnson & Washer, 29 Cal.App.3d 270, 274 (1972). The dash cam video was never produced as
17 part of a verified discovery response. See Declaration of Eric A. Forstrom, para. 5, filed
18 concurrently herewith. Further, the statement contains inadmissible hearsay and lacks foundation.
19 See Cal. Ev. Code §§1200. 702.
20 Response to Objection No. 1:
21 Plaintiff misinterprets Thoren v. Johnson & Washer (1972) 29 Cal.App.3d 270. The
22 Thoren court, relying on a former provision of the Civil Discovery Act approved the exclusion of
23 a witness’s testimony as a sanction for giving a willfully false answer, likening the false answer to
24 no answer at all. (Thoren, 29 Cal.App.3d 270.) The discovery statute then extant authorized the
25 imposition of an evidence sanction for the willful failure to serve and file answers to
26 interrogatories. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316, 333.) “While current law
27 continues to treat a failure to respond to discovery as a ‘misuse…of the discovery process’
28 (§§2023.030, 2023.010, subd. (d)), the imposition of an evidence sanction is now conditioned
PS27-0000012 2
13874973.1 RESPONSE TO PLAINTIFF’S OBJECTIONS TO EVIDENCE
1 upon the violation of an order compelling the response (§§ 2023.030, 2030.290, subd. (c)).” (Id.
2 at 333-334.) Thus, “current law has replaced the former requirement for imposition of an
3 evidence sanction – that the failure to respond was ‘willful’ – with the requirement that the
4 responding party violated an order compelling the response.” (Id. at 334.) Thoren’s application is
5 now very narrow, covering a circumstance not specifically dealt with in the Civil Disco very Act.
6 (Id.) “Thus, in the absence of a violation of an order compelling an answer or further answer, the
7 evidence sanction may only be imposed where the answer given is willfully false. The simple
8 failure to answer, or the giving of an evasive answer, requires the propounding party to pursue an
9 order compelling an answer or further answer…” (Id.) (Emphasis added.)
10 Here, Plaintiff does not allege that any of Defendants’ discovery responses were willfully
11 false. Furthermore, this Court never issued an order compelling Defendants to identify or produce
12 the video footage, because an order was never necessary. The footage was identified and
13 produced long ago.
14 Plaintiff’s foundation objections are also lacking in merit. “A photograph or video
15 recording is typically authenticated by showing it is a fair and accurate representation of the scene
16 depicted.” (People v. Goldsmith (2014) 59 Cal.4th 258, 267.) Furthermore, a “printed
17 representation of images stored on a video or digital medium is presumed to be an accurate
18 representation of the images it purports to represent.” (Evid. Code § 1553(a).) The Declaration of
19 Sherman Lewis Wright lays an adequate foundation. (See Wright Declaration, ¶¶ 8-10.)
20 Lastly, Plaintiff’s hearsay objections lack merit. The dash camera footage is independently
21 triggered to record footage beginning several seconds before a triggering event. (See Wright
22 Declaration, ¶ 9.) Thus, there is no hearsay “statement” being made by a person regarding the
23 information that is recorded. (People v. Goldsmith, 59 Cal.4th at 274.) “Simply put, ‘[t]he
24 Evidence Code does not contemplate that a machine can make a statement.’” (Id.; see also, U.S. v.
25 Hamilton (4th Cir. 2007) 498 F.3d 225, 231 [“the raw data generated by the machines do not
26 constitute ‘statements,’ and the machines are not ‘declarants’”].)
27 / //
28 / //
PS27-0000012 3
13874973.1 RESPONSE TO PLAINTIFF’S OBJECTIONS TO EVIDENCE
1 Thus, Plaintiff’s objections are improper and should be overruled.
2
3 Dated: August 19, 2021 HAIGHT BROWN & BONESTEEL LLP
4
5 By:
6 Krsto Mijanovic
Lisa T. Omoto
7 Attorneys for Defendants SHERMAN LEWIS
WRIGHT, FORD MOTOR COMPANY, and
8 CHARIOT TRANSIT, INC.
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PS27-0000012 4
13874973.1 RESPONSE TO PLAINTIFF’S OBJECTIONS TO EVIDENCE
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
3 David Nguyen v. Sherman Lewis Wright, et al.
Case No. CGC-19-576056
4
At the time of service, I was over 18 years of age and not a party to this action. I am
5 employed in the County of San Francisco, State of California. My business address is 555 South
Flower Street, Forty-Fifth Floor, Los Angeles, CA 90071.
6
On August 19, 2021, I served true copies of the following document(s) described as
7 DEFENDANTS’ RESPONSE TO PLAINTIFF’S OBJECTIONS TO EVIDENCE IN
SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
8 SUMMARY ADJUDICATION on the interested parties in this action as follows:
9 Christopher P. Mesaros, Esq. T: 626.838.5700
FIRST LAW GROUP F: 626.838.5710
10 314 E. Rowland Street
Covina, CA 91723 E: chris@firstlg.com
11 eric@firstlg.com
christina@firstlg.com
12
Attorney for Plaintiff David Nguyen
13
14
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
15 document(s) to be sent from e-mail address phaymond@hbblaw.com to the persons at the e-mail
addresses listed in the Service List. I did not receive, within a reasonable time after the
16 transmission, any electronic message or other indication that the transmission was unsuccessful.
17 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
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Executed on August 19, 2021, at Hayward, California.
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21 Patricia B. Haymond
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PS27-0000012 1
13874973.1 RESPONSE TO PLAINTIFF’S OBJECTIONS TO EVIDENCE
Preview
1 Krsto Mijanovic (Bar No. 205060) kmijanovic@hbblaw.com 2 Lisa T. Omoto (Bar No. 303830) ELECTRONICALLY lomoto@hbblaw.com 3 HAIGHT BROWN & BONESTEEL LLP F I L E D Superior Court of California, 555 South Flower Street, Forty-Fifth Floor County of San Francisco 4 Los Angeles, California 90071 Telephone: 213.542.8000 08/19/2021 Clerk of the Court 5 Facsimile: 213.542.8100 BY: EDNALEEN ALEGRE Deputy Clerk 6 Attorneys for Defendants SHERMAN LEWIS WRIGHT, FORD MOTOR COMPANY, and 7 CHARIOT TRANSIT, INC. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 DAVID NGUYEN, Case No. CGC-19-576056 12 Plaintiff, Assigned for All Purposes to: Hon. Garrett L. Wong, Dept. 206 13 v. DEFENDANTS’ RESPONSE TO 14 SHERMAN LEWIS WRIGHT, FORD PLAINTIFF’S OBJECTIONS TO MOTOR COMPANY, CHARIOT TRANSIT, EVIDENCE IN SUPPORT OF MOTION 15 INC., and DOES 1 to 30, FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY 16 Defendants. ADJUDICATION 17 [Filed Concurrently with Reply to Plaintiff’s Opposition to Motion for Summary Judgment; 18 Reply to Plaintiff’s Opposition to Separate Statement of Undisputed Material Facts and 19 Response to Plaintiff’s Separate Statement of Additional Undisputed Material Facts; 20 Objections to Plaintiff’s Evidence; Declaration of Lisa T. Omoto] 21 Date: August 24, 2021 22 Time: 9:30 a.m. Dept.: 302 23 Action Filed: May 16, 2019 24 Trial Date: January 3, 2022 25 26 27 28 PS27-0000012 1 13874973.1 RESPONSE TO PLAINTIFF’S OBJECTIONS TO EVIDENCE 1 I. INTRODUCTION 2 Pursuant to Code of Civil Procedure Section 437c and California Rules of Court, Rule 3 3.1354, Defendants SHERMAN LEWIS WRIGHT, FORD MOTOR COMPANY, and CHARIOT 4 TRANSIT, INC. (collectively, “Defendants”) hereby respond to Plaintiff DAVID NGUYEN’s 5 (“Plaintiff”) objections to evidence submitted by Defendants in support of their Motion for 6 Summary Judgment or, in the alternative, Summary Adjudication. 7 Objection No. 1 8 Declaration of Sherman Lewis Wright. 9 "Attached hereto as Exhibit 'B' is a true and correct copy of the dash camera recording of 10 the subject incident .... it fairly and accurately depicts the Subject Intersection end the scene of the 11 accident as they existed at the time of the subject accident. The recording fairly and accurately 12 shows a simultaneous side-by-side view of both the interior and exterior of the vehicle I was 13 driving at the time of the subject accident, and the scene of the accident.” 14 Grounds for Objection No. 1: Courts are authorized to exclude any evidence which is not 15 properly disclosed during the discovery process. See CCP §2023.030(c); see also Thoren v. 16 Johnson & Washer, 29 Cal.App.3d 270, 274 (1972). The dash cam video was never produced as 17 part of a verified discovery response. See Declaration of Eric A. Forstrom, para. 5, filed 18 concurrently herewith. Further, the statement contains inadmissible hearsay and lacks foundation. 19 See Cal. Ev. Code §§1200. 702. 20 Response to Objection No. 1: 21 Plaintiff misinterprets Thoren v. Johnson & Washer (1972) 29 Cal.App.3d 270. The 22 Thoren court, relying on a former provision of the Civil Discovery Act approved the exclusion of 23 a witness’s testimony as a sanction for giving a willfully false answer, likening the false answer to 24 no answer at all. (Thoren, 29 Cal.App.3d 270.) The discovery statute then extant authorized the 25 imposition of an evidence sanction for the willful failure to serve and file answers to 26 interrogatories. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316, 333.) “While current law 27 continues to treat a failure to respond to discovery as a ‘misuse…of the discovery process’ 28 (§§2023.030, 2023.010, subd. (d)), the imposition of an evidence sanction is now conditioned PS27-0000012 2 13874973.1 RESPONSE TO PLAINTIFF’S OBJECTIONS TO EVIDENCE 1 upon the violation of an order compelling the response (§§ 2023.030, 2030.290, subd. (c)).” (Id. 2 at 333-334.) Thus, “current law has replaced the former requirement for imposition of an 3 evidence sanction – that the failure to respond was ‘willful’ – with the requirement that the 4 responding party violated an order compelling the response.” (Id. at 334.) Thoren’s application is 5 now very narrow, covering a circumstance not specifically dealt with in the Civil Disco very Act. 6 (Id.) “Thus, in the absence of a violation of an order compelling an answer or further answer, the 7 evidence sanction may only be imposed where the answer given is willfully false. The simple 8 failure to answer, or the giving of an evasive answer, requires the propounding party to pursue an 9 order compelling an answer or further answer…” (Id.) (Emphasis added.) 10 Here, Plaintiff does not allege that any of Defendants’ discovery responses were willfully 11 false. Furthermore, this Court never issued an order compelling Defendants to identify or produce 12 the video footage, because an order was never necessary. The footage was identified and 13 produced long ago. 14 Plaintiff’s foundation objections are also lacking in merit. “A photograph or video 15 recording is typically authenticated by showing it is a fair and accurate representation of the scene 16 depicted.” (People v. Goldsmith (2014) 59 Cal.4th 258, 267.) Furthermore, a “printed 17 representation of images stored on a video or digital medium is presumed to be an accurate 18 representation of the images it purports to represent.” (Evid. Code § 1553(a).) The Declaration of 19 Sherman Lewis Wright lays an adequate foundation. (See Wright Declaration, ¶¶ 8-10.) 20 Lastly, Plaintiff’s hearsay objections lack merit. The dash camera footage is independently 21 triggered to record footage beginning several seconds before a triggering event. (See Wright 22 Declaration, ¶ 9.) Thus, there is no hearsay “statement” being made by a person regarding the 23 information that is recorded. (People v. Goldsmith, 59 Cal.4th at 274.) “Simply put, ‘[t]he 24 Evidence Code does not contemplate that a machine can make a statement.’” (Id.; see also, U.S. v. 25 Hamilton (4th Cir. 2007) 498 F.3d 225, 231 [“the raw data generated by the machines do not 26 constitute ‘statements,’ and the machines are not ‘declarants’”].) 27 / // 28 / // PS27-0000012 3 13874973.1 RESPONSE TO PLAINTIFF’S OBJECTIONS TO EVIDENCE 1 Thus, Plaintiff’s objections are improper and should be overruled. 2 3 Dated: August 19, 2021 HAIGHT BROWN & BONESTEEL LLP 4 5 By: 6 Krsto Mijanovic Lisa T. Omoto 7 Attorneys for Defendants SHERMAN LEWIS WRIGHT, FORD MOTOR COMPANY, and 8 CHARIOT TRANSIT, INC. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PS27-0000012 4 13874973.1 RESPONSE TO PLAINTIFF’S OBJECTIONS TO EVIDENCE 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 3 David Nguyen v. Sherman Lewis Wright, et al. Case No. CGC-19-576056 4 At the time of service, I was over 18 years of age and not a party to this action. I am 5 employed in the County of San Francisco, State of California. My business address is 555 South Flower Street, Forty-Fifth Floor, Los Angeles, CA 90071. 6 On August 19, 2021, I served true copies of the following document(s) described as 7 DEFENDANTS’ RESPONSE TO PLAINTIFF’S OBJECTIONS TO EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, 8 SUMMARY ADJUDICATION on the interested parties in this action as follows: 9 Christopher P. Mesaros, Esq. T: 626.838.5700 FIRST LAW GROUP F: 626.838.5710 10 314 E. Rowland Street Covina, CA 91723 E: chris@firstlg.com 11 eric@firstlg.com christina@firstlg.com 12 Attorney for Plaintiff David Nguyen 13 14 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the 15 document(s) to be sent from e-mail address phaymond@hbblaw.com to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the 16 transmission, any electronic message or other indication that the transmission was unsuccessful. 17 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 18 Executed on August 19, 2021, at Hayward, California. 19 20 21 Patricia B. Haymond 22 23 24 25 26 27 28 PS27-0000012 1 13874973.1 RESPONSE TO PLAINTIFF’S OBJECTIONS TO EVIDENCE