Preview
ROBERT M. PETERSON (Bar No.: 100084)
COLIN C. MUNRO (Bar-No.: 195520)
CHRISTOPHER J. WEBER (Bar No.: 233998)
CARLSON, CALLADINE & PETERSON LLP
353 Sacramento Street, 16th Floor ELECTRONICALLY
San Francisco, CA 94111 FILED
Telephone: (415) 391-3911 Superior Court of Califomia,
Facsimile: (415) 391-3898 County of San Francisco
06/03/2015
Attorneys for Defendants ee Court
TAXI EQUIPMENT LEASING LLC and YELLOW CAB : Bema) cee
COOPERATIVE, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
IDA CRISTINA CRUZ FUA, Case No.: CGC-11-515542
inti Consolidated with CGC-12-519794 and
plan CGC-13-529705
v.
DEFENDANTS TAXI EQUIPMENT
JOEL ENRIQUE ANDINO SANCHEZ, and LEASING LLC AND YELLOW CAB
individual; CAROLINE MILLER, an COOPERATIVE, INC.’S BRIEF IN
individual; TAXI EQUIPMENT LEASING OPPOSITION TO PLAINTIFF’S
REQUEST TO RECALL WITNESS
LLC, a Limited Liability Company; SAN
FRANCISCO INDEPENDENT TAXI JEFF CHENG 10 TESTIFY RE HIS
ASSOCIATION, a Corporation; YELLOW SELECTING TAXI CABS, AND WHY
CAB COOPERATIVE, INC., a Corporation; HE CHOSE TO OCCUPY YELLOW
and DOES 1 through 50, Inclusive, CAB #609.
Date: June 3, 2015
Derren Time: 9:30 A.M.
Dept.: 608
Judge: Honorable Garrett Wong
I INTRODUCTION AND SUMMARY OF ARGUMENT
During the testimony of Mr. Cheng, Plaintiff attempted to elicit testimony from Mr. Cheng
regarding Mr. Cheng’s habits and custom in selecting taxicabs and why he chose to occupy
taxicab #609. Defendant objected, and the Court sustained the objections. In particular,
Defendant objected that any testimony by Mr. Cheng as to HIS custom/practice in taking taxicabs,
1
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGand HIS decision as to why HE hailed the specific cab was irrelevant. As Plaintiff concedes, the
applicable CACTI instruction on ostensible agency expressly focuses the inquiry on Plaintiff's state
of mind, NOT Mr. Cheng’s. (“That Plaintiff reasonably believed that MR. SANCHEZ was
YELLOW CAB’S ostensible employee/agent”,; CACI 3709; Plaintiff's Motion, Pg 2, 1). Also,
as Plaintiff concedes, Ms. Fua has already testified as to HER custom and practice in taking taxis
before the incident in question. Plaintiff's renewed request provides no basis for why Mr. Cheng’s
testimony regarding this issue is relevant in determining Ms. Fua’s beliefs.
The authorities cited by Plaintiff in support of her motion are inapplicable. As concerns
the Evidence Code respecting custom and habit, Plaintiff has already testified to her decision
making process concerning the selection of taxis. However, as set forth below, Mr. Cheng’s
particular customs and habits, if any, in selecting taxis for himself is simply not relevant to that of
Plaintiff's. Lastly, Plaintiffs reliance on failure-to-warn product liability cases is similarly
unavailing. Each cited case pertains to the burden of proof regarding the element of causation
under the doctrine of strict liability and negligence per se. The pertinent issue here pertains to
reliance under the common law doctrine of ostensible agency — that Plaintiff fails to cite a single
case allowing the reliance of one to be imputed to another is telling.
I. ARGUMENT
A. Mr. Cheng’s testimony is irrelevant to Plaintiff's argument that Mr.
Sanchez did not have to be an actual employee to have ostensible
authority.
Plaintiff's argument regarding whether someone can be an independent contractor but also
an ostensible agent confuses two very different concepts. Agency, as in whether someone is
authorized to contract on behalf of someone else (a principal), is very different than whether
someone is an employee or ostensible employee. As Plaintiff acknowledges, “independent
contractor and servant or employee are” mutually exclusive legal categories, i.e. one cannot be
both an independent contractor as well as an employee. On the other hand, one can be an
independent contractor but also enter into an agency agreement that would authorize one to
2
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGa WN
represent and contract on behalf of a principal. This case, however, does NOT involve agency or
ostensible agency — it involves whether Mr. Sanchez was an employee or an ostensible employee.
An agent is the person authorized to act for or in the place of the principal and is subject to
the right of the principal to control his actions. (2 Witkin, Summary of California Law (9th Ed.),
Agency and Employment, § 5, at 24.) An ostensible agent is one who appears to be an agent based
on the actions of the principal. (Cal. Civ. Code, § 2300.) Moreover, pursuant to Civil Code,
Section 2298 “{a]n agency is either actual or ostensible.” Nobody can seriously argue that a
taxicab driver (such as Mr. Sanchez) is authorized, or ostensibly authorized, to enter into contracts
on behalf of Yellow Cab.
B. Ms. Fua’s testimony regarding her habit and custom in taking taxicabs
does NOT provide any basis for making Mr. Cheng’s testimony
relevant.
As Plaintiff acknowledges, Ms. Fua has already testified regarding her custom in taking
taxicabs. Plaintiff is free to make whatever arguments she wants regarding the significance or
effect of that testimony. However, her testimony makes clear that she has NEVER discussed this
issue with Mr. Cheng. She has never discussed with Mr. Cheng why SHE chose particular taxis,
nor did she ever discuss with Mr. Cheng why HE chose to take any particular taxis. Because she
has never discussed this with Mr. Cheng, any testimony about what Mr. Cheng believed when
taking a taxi is irrelevant. Moreover, it invites the jury to impermissibly speculate that Mr.
Cheng’s belief and reasons are relevant in determining what Ms. Fua believed. Because Ms. Fua
and Mr. Cheng never discussed taxi cab companies or taxi cabs, what she may infer as why Mr.
Cheng would or would not choose a taxi is irrelevant regarding her beliefs. Ms. Fua is not a mind
reader — without a discussion or a conversation, she cannot have any foundation for a “belief” as to
why Mr. Cheng chose a particular taxi in the past or not. As the court correctly pointed out
during argument on this point, Plaintiff's request is an attempt to bootstrap Mr. Cheng’s belief into
somehow being Ms. Fua’s.
3
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGThe relevant testimony concerning Ms. Fua’s history with Mr. Cheng respecting taxi cabs
is as follows:
Q. Okay. And prior to that date, had you and Jeff ever conversed with each other about
taxi cab companies?
A. You know, we never had a sit down conversation about taxi cabs, so, no.
Q. Did you ever have a conversation about the kinds of cabs or companies you would take
aride with versus the type you wouldn’t?
A. We never talked about it, but I think there was a sort of implicit understanding in our
relationship about what we would do.
Q. How is it you feel that way?
A. How did I feel that way?
Q. Yeah.
A. Partly because I know him. He’s a very safe and conservative guy, and we sort of had
a lot of same values. We knew what we would do and what we wouldn’t do. We were similar in
that respect.
(Trial testimony of Ms. Fua, pg 75:10-76:4; objections omitted, attached to Weber Decl. as
Exhibit “A”).
Further, Ms. Fua testified as follows:
Q. Okay. I wanted to ask you if at any time prior to this incident you had a discussion
with Jeff about whether any taxi you took had to be a certain kind of taxi?
A. We never talked about that, no.
Q. Did you ever talk about taking a taxi —a reputable taxi versus some other kind of taxi?
A. We never talked about it, but there was an understanding I think that the cab we would
get into would be a cab we could trust.
Q. What do you mean by a cab that we can trust?
A. I guess, you know, we never sort of took rides — 1 guess when I think of a driver, you
can’t really trust like a person — like just a guy driving a car, hey, you guys need a ride
4
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGsomewhere. That probably something we would never do because it was just — I don’t know.
(Trial testimony of Ms. Fua, pg 76:25-77:13, attached to Weber Decl. as Exhibit “A”)
Ms. Fua also testified:
Q. Is that — does that refresh your recollection as to whether you and Jeff Cheng actually
had a conversation prior to the accident or a discussion about whether any taxi you took had to be
a reputable taxi?
A. Yes. So we never — we never talked about it, but there was an implicit understanding
that it would be sort of something we recognized looks familiar, brand or known to be reputable.
(Trial testimony of Ms. Fua, pg 80:20-28. attached to Weber Decl. as Exhibit “A”))
Further confirming the fact that Ms. Fua and Mr. Cheng did not discuss the selection of
taxis, Ms. Fua also testified:
Q. How do you know your implicit understanding came from a conversation if it did?
A. I don’t think we had a conversation. I think it was just sort of something we both know
that you do.
Q. Okay. And can you tell us how you believed or knew that Jeff had that habit of
wanting a reputable or brand taxi?
A. So Jeff is — I think I said it earlier, he’s super safe and conservative, you know, he’s
very protective of me even before the incident, and you know, we both — we both had sort of
situations where he’s been beat and mugged in Berkeley. So I know that he’s very interested in
safety, and what reputable and what you can trust, I guess.
(Trial testimony of Ms. Fua, pg 81:7-27; objections and rulings omitted, Weber Decl. Exhibit “A”)
C. Plaintiff fails to demonstrate any legal basis for further testimony on part of Mr.
Cheng
Plaintiff's reliance on a series of product liability and negligence per se cases is misplaced.
Each case cited by Plaintiff involves the issue of causation, and notably, causation within the
ambit of the strict product liability doctrine. In Elmore v. American Motors Corp. (1969) 70
Cal.2d 578 (Plaintiff's Motion, Pg. 6, 3), a product liability action brought against a manufacturer
and retailer, the court simply reaffirmed that the purpose of strict liability is to ensure that “the
5
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGYN QA ws
costs of injuries resulting from defective products are [to be] borne by the manufacturers,” and in
accord with that public policy, shifted the burden to defendants on the element of causation. (See
also Dimond vy. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173, Plaintiff's Motion, Pg. 6, §3)
[permitting an inference of causation on a strict liability theory]. Likewise, in Haft v. Lone Palm
Motel (1970) 3 Cal.3d 756, defendant failed to abide by mandatory safety requirements relative to
maintaining a swimming pool, and the court found “defendants of course were unquestionably
negligent as a matter of law.” Relying on Summers v. Tice (1948) 33 Cal.2d 80, the court simply
shifted the burden to the negligent defendant on the issue of causation.
There are simply no authorities supporting the application of strict liability burden-shifting
regarding the element of causation to the doctrine of ostensible agency. Indeed, the utility of such
an approach is highly questionable when the law of ostensible agency already allows for proof
based upon implied circumstances. (See Yanchor v. Kagan (1971) 22 Cal.App.3d 544). Here,
those circumstances are already in evidence, and the jury may afford whatever weight it desires to
those circumstances. What Plaintiff purports to do, however, is to substitute the belief of one (Mr.
Cheng) for that of another (Plaintiff). None of the authorities relied upon by Plaintiff provide any
support for this proposition.
Plaintiff's cited authorities regarding “custom and habit” are similarly unavailing. The
sole decision cited by Plaintiff (See Dincau v. Tamayose (1982) 131 Cal.App.3d 780) allowed
habit evidence to demonstrate the absence of negligence, with most of the evidence concerning
actions occurring after the incident giving rise to the action. It is factually distinguishable on its
face. Plaintiffs attempt to “bootstrap” evidence relative to Mr. Cheng as indicative of habit or
custom of practice pursuant to Evidence Code section 1105 is simply misplaced. (See Larson v.
Larsen (1925) 72 Cal. App. 169, 171 [“It is a fundamental rule of evidence that you cannot prove
the commission of an act by showing the commission of similar acts by the same person at other
times and under other circumstances. Such evidence is simply not relevant; it does not tend to
prove the issue]. Plaintiff request to have Mr. Cheng’s belief be made into being Ms. Fua’s belief’
is simply without support.
6
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGYN aA Ww ew N
Ill. CONCLUSION
Ms. Fua has already testified about her beliefs and custom regarding taking taxicabs. Her
beliefs and customs are the only beliefs that are relevant pursuant to CACI 3709. There is simply
no legitimate basis for Mr. Cheng to testify regarding his beliefs/customs and somehow invite the
jury to speculate that his subjective beliefs or opinions were known by Ms. Fua and that she had
the same beliefs.
Dated: June 3, 2015 CARLSON, CALLADINE & PETERSON
By: ys See.
COLIN C. MUNRO
Attorneys for Defendants
TAXI EQUIPMENT LEASING LLC and
YELLOW CAB COOPERATIVE, INC.
7
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGCoO me NID
PROOF OF SERVICE
Ida Cristina Cruz Fua v. Joel Enrique Andino Sanchez, et al.
San Francisco Superior Court Case No. CGC-11-515542
I am employed in the County of San Francisco, State of California. I am over the age of 18
and not a party to the within action. My business address is 353 Sacramento Street, 16th Floor,
San Francisco, California 94111.
On June 3, 2015, I served the following documents:
1 DEFENDANTS TAXI EQUIPMENT LEASING LLC AND YELLOW CAB
COOPERATIVE, INC.’S BRIEF IN OPPOSITION TO PLAINTIFF’S REQUEST TO
RECALL WITNESS JEFF CHENG TO TESTIFY RE HIS HABITS AND CUSTOMS IN
SELECTING TAXI CABS, AND WHY HE CHOSE TO OCCUPY YELLOW CAB #609;
and
2. DECLARATION OF CHRISTOPHER J. WEBER IN SUPPORT OF
DEFENDANTS TAXI EQUIPMENT LEASING LLC AND YELLOW CAB
COOPERATIVE, INC.’S BRIEF IN OPPOSITION TO PLAINTIFF’S REQUEST TO
RECALL WITNESS JEFF CHENG TO TESTIFY RE HIS HABITS AND CUSTOMS IN
SELECTING TAXI CABS, AND WHY HE CHOSE TO OCCUPY YELLOW CAB #609
in the manner indicated below, on the interested parties in said action at the following addresses
(including fax numbers and email addresses, if applicable) as follows:
Todd P. Emanuel, Esq. Telephone: (650) 369-8900
Mark D. Rosenberg, Esq. Facsimile: (650) 369-8999
Emanuel Law Group Email: todd@TEinjurylaw.com
702 Marshall Street, Suite 400 Email: mark@TEinjurylaw.com
Redwood City, CA 94063 Attorneys for Plaintiff Fua
D. Douglas Shureen, Esq. Telephone: (707) 525-5400
McMillian & Shureen LLP Facsimile: (707) 576-7955
50 Santa Rosa Avenue, Suite 200 Email: doug.shureen@memillanshureen.com
Santa Rosa, CA 95404 Attorneys for Defendant Joel Enrique Andino
Sanchez
Gregory H. McCormick, Esq. Telephone: (510) 444-6800
Burnham Brown Facsimile: (510) 835-6666
1901 Harrison Street, 14th Floor Email: gmccormick@burnhambrown.com
Oakland, CA 94612 Attorneys for Defendant Alan DaSilva and
San Francisco Independent Taxi Assn.
Robert S. Aaron, Esq. Telephone: (415) 438-7801
Aaron & Wilson, LLP Facsimile: (415) 438-7808
150 Post Street, Suite 400 Email: rsaaron@aaron-wilson.com
San Francisco, CA 94108 Co-counsel for Defendants Taxi Equipment
and Yellow Cab Cooperative, Inc.
— BY_E-MAIL OR ELECTRONIC TRANSMISSION: Based on a Court Order or an
agreement of the parties to accept service by e-mail or electronic transmission, I caused
the documents to be sent to the persons at the email addresses listed. I did not receive,
within a reasonable time after the transmission, any electronic message or other indication
PROOF OF SERVICEthat the transmission was unsuccessful.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on June 3, 2015, at San Francisco, California.
SHARI L. HIIBEL
PROOF OF SERVICE
Preview
ROBERT M. PETERSON (Bar No.: 100084) COLIN C. MUNRO (Bar-No.: 195520) CHRISTOPHER J. WEBER (Bar No.: 233998) CARLSON, CALLADINE & PETERSON LLP 353 Sacramento Street, 16th Floor ELECTRONICALLY San Francisco, CA 94111 FILED Telephone: (415) 391-3911 Superior Court of Califomia, Facsimile: (415) 391-3898 County of San Francisco 06/03/2015 Attorneys for Defendants ee Court TAXI EQUIPMENT LEASING LLC and YELLOW CAB : Bema) cee COOPERATIVE, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO IDA CRISTINA CRUZ FUA, Case No.: CGC-11-515542 inti Consolidated with CGC-12-519794 and plan CGC-13-529705 v. DEFENDANTS TAXI EQUIPMENT JOEL ENRIQUE ANDINO SANCHEZ, and LEASING LLC AND YELLOW CAB individual; CAROLINE MILLER, an COOPERATIVE, INC.’S BRIEF IN individual; TAXI EQUIPMENT LEASING OPPOSITION TO PLAINTIFF’S REQUEST TO RECALL WITNESS LLC, a Limited Liability Company; SAN FRANCISCO INDEPENDENT TAXI JEFF CHENG 10 TESTIFY RE HIS ASSOCIATION, a Corporation; YELLOW SELECTING TAXI CABS, AND WHY CAB COOPERATIVE, INC., a Corporation; HE CHOSE TO OCCUPY YELLOW and DOES 1 through 50, Inclusive, CAB #609. Date: June 3, 2015 Derren Time: 9:30 A.M. Dept.: 608 Judge: Honorable Garrett Wong I INTRODUCTION AND SUMMARY OF ARGUMENT During the testimony of Mr. Cheng, Plaintiff attempted to elicit testimony from Mr. Cheng regarding Mr. Cheng’s habits and custom in selecting taxicabs and why he chose to occupy taxicab #609. Defendant objected, and the Court sustained the objections. In particular, Defendant objected that any testimony by Mr. Cheng as to HIS custom/practice in taking taxicabs, 1 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGand HIS decision as to why HE hailed the specific cab was irrelevant. As Plaintiff concedes, the applicable CACTI instruction on ostensible agency expressly focuses the inquiry on Plaintiff's state of mind, NOT Mr. Cheng’s. (“That Plaintiff reasonably believed that MR. SANCHEZ was YELLOW CAB’S ostensible employee/agent”,; CACI 3709; Plaintiff's Motion, Pg 2, 1). Also, as Plaintiff concedes, Ms. Fua has already testified as to HER custom and practice in taking taxis before the incident in question. Plaintiff's renewed request provides no basis for why Mr. Cheng’s testimony regarding this issue is relevant in determining Ms. Fua’s beliefs. The authorities cited by Plaintiff in support of her motion are inapplicable. As concerns the Evidence Code respecting custom and habit, Plaintiff has already testified to her decision making process concerning the selection of taxis. However, as set forth below, Mr. Cheng’s particular customs and habits, if any, in selecting taxis for himself is simply not relevant to that of Plaintiff's. Lastly, Plaintiffs reliance on failure-to-warn product liability cases is similarly unavailing. Each cited case pertains to the burden of proof regarding the element of causation under the doctrine of strict liability and negligence per se. The pertinent issue here pertains to reliance under the common law doctrine of ostensible agency — that Plaintiff fails to cite a single case allowing the reliance of one to be imputed to another is telling. I. ARGUMENT A. Mr. Cheng’s testimony is irrelevant to Plaintiff's argument that Mr. Sanchez did not have to be an actual employee to have ostensible authority. Plaintiff's argument regarding whether someone can be an independent contractor but also an ostensible agent confuses two very different concepts. Agency, as in whether someone is authorized to contract on behalf of someone else (a principal), is very different than whether someone is an employee or ostensible employee. As Plaintiff acknowledges, “independent contractor and servant or employee are” mutually exclusive legal categories, i.e. one cannot be both an independent contractor as well as an employee. On the other hand, one can be an independent contractor but also enter into an agency agreement that would authorize one to 2 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGa WN represent and contract on behalf of a principal. This case, however, does NOT involve agency or ostensible agency — it involves whether Mr. Sanchez was an employee or an ostensible employee. An agent is the person authorized to act for or in the place of the principal and is subject to the right of the principal to control his actions. (2 Witkin, Summary of California Law (9th Ed.), Agency and Employment, § 5, at 24.) An ostensible agent is one who appears to be an agent based on the actions of the principal. (Cal. Civ. Code, § 2300.) Moreover, pursuant to Civil Code, Section 2298 “{a]n agency is either actual or ostensible.” Nobody can seriously argue that a taxicab driver (such as Mr. Sanchez) is authorized, or ostensibly authorized, to enter into contracts on behalf of Yellow Cab. B. Ms. Fua’s testimony regarding her habit and custom in taking taxicabs does NOT provide any basis for making Mr. Cheng’s testimony relevant. As Plaintiff acknowledges, Ms. Fua has already testified regarding her custom in taking taxicabs. Plaintiff is free to make whatever arguments she wants regarding the significance or effect of that testimony. However, her testimony makes clear that she has NEVER discussed this issue with Mr. Cheng. She has never discussed with Mr. Cheng why SHE chose particular taxis, nor did she ever discuss with Mr. Cheng why HE chose to take any particular taxis. Because she has never discussed this with Mr. Cheng, any testimony about what Mr. Cheng believed when taking a taxi is irrelevant. Moreover, it invites the jury to impermissibly speculate that Mr. Cheng’s belief and reasons are relevant in determining what Ms. Fua believed. Because Ms. Fua and Mr. Cheng never discussed taxi cab companies or taxi cabs, what she may infer as why Mr. Cheng would or would not choose a taxi is irrelevant regarding her beliefs. Ms. Fua is not a mind reader — without a discussion or a conversation, she cannot have any foundation for a “belief” as to why Mr. Cheng chose a particular taxi in the past or not. As the court correctly pointed out during argument on this point, Plaintiff's request is an attempt to bootstrap Mr. Cheng’s belief into somehow being Ms. Fua’s. 3 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGThe relevant testimony concerning Ms. Fua’s history with Mr. Cheng respecting taxi cabs is as follows: Q. Okay. And prior to that date, had you and Jeff ever conversed with each other about taxi cab companies? A. You know, we never had a sit down conversation about taxi cabs, so, no. Q. Did you ever have a conversation about the kinds of cabs or companies you would take aride with versus the type you wouldn’t? A. We never talked about it, but I think there was a sort of implicit understanding in our relationship about what we would do. Q. How is it you feel that way? A. How did I feel that way? Q. Yeah. A. Partly because I know him. He’s a very safe and conservative guy, and we sort of had a lot of same values. We knew what we would do and what we wouldn’t do. We were similar in that respect. (Trial testimony of Ms. Fua, pg 75:10-76:4; objections omitted, attached to Weber Decl. as Exhibit “A”). Further, Ms. Fua testified as follows: Q. Okay. I wanted to ask you if at any time prior to this incident you had a discussion with Jeff about whether any taxi you took had to be a certain kind of taxi? A. We never talked about that, no. Q. Did you ever talk about taking a taxi —a reputable taxi versus some other kind of taxi? A. We never talked about it, but there was an understanding I think that the cab we would get into would be a cab we could trust. Q. What do you mean by a cab that we can trust? A. I guess, you know, we never sort of took rides — 1 guess when I think of a driver, you can’t really trust like a person — like just a guy driving a car, hey, you guys need a ride 4 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGsomewhere. That probably something we would never do because it was just — I don’t know. (Trial testimony of Ms. Fua, pg 76:25-77:13, attached to Weber Decl. as Exhibit “A”) Ms. Fua also testified: Q. Is that — does that refresh your recollection as to whether you and Jeff Cheng actually had a conversation prior to the accident or a discussion about whether any taxi you took had to be a reputable taxi? A. Yes. So we never — we never talked about it, but there was an implicit understanding that it would be sort of something we recognized looks familiar, brand or known to be reputable. (Trial testimony of Ms. Fua, pg 80:20-28. attached to Weber Decl. as Exhibit “A”)) Further confirming the fact that Ms. Fua and Mr. Cheng did not discuss the selection of taxis, Ms. Fua also testified: Q. How do you know your implicit understanding came from a conversation if it did? A. I don’t think we had a conversation. I think it was just sort of something we both know that you do. Q. Okay. And can you tell us how you believed or knew that Jeff had that habit of wanting a reputable or brand taxi? A. So Jeff is — I think I said it earlier, he’s super safe and conservative, you know, he’s very protective of me even before the incident, and you know, we both — we both had sort of situations where he’s been beat and mugged in Berkeley. So I know that he’s very interested in safety, and what reputable and what you can trust, I guess. (Trial testimony of Ms. Fua, pg 81:7-27; objections and rulings omitted, Weber Decl. Exhibit “A”) C. Plaintiff fails to demonstrate any legal basis for further testimony on part of Mr. Cheng Plaintiff's reliance on a series of product liability and negligence per se cases is misplaced. Each case cited by Plaintiff involves the issue of causation, and notably, causation within the ambit of the strict product liability doctrine. In Elmore v. American Motors Corp. (1969) 70 Cal.2d 578 (Plaintiff's Motion, Pg. 6, 3), a product liability action brought against a manufacturer and retailer, the court simply reaffirmed that the purpose of strict liability is to ensure that “the 5 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGYN QA ws costs of injuries resulting from defective products are [to be] borne by the manufacturers,” and in accord with that public policy, shifted the burden to defendants on the element of causation. (See also Dimond vy. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173, Plaintiff's Motion, Pg. 6, §3) [permitting an inference of causation on a strict liability theory]. Likewise, in Haft v. Lone Palm Motel (1970) 3 Cal.3d 756, defendant failed to abide by mandatory safety requirements relative to maintaining a swimming pool, and the court found “defendants of course were unquestionably negligent as a matter of law.” Relying on Summers v. Tice (1948) 33 Cal.2d 80, the court simply shifted the burden to the negligent defendant on the issue of causation. There are simply no authorities supporting the application of strict liability burden-shifting regarding the element of causation to the doctrine of ostensible agency. Indeed, the utility of such an approach is highly questionable when the law of ostensible agency already allows for proof based upon implied circumstances. (See Yanchor v. Kagan (1971) 22 Cal.App.3d 544). Here, those circumstances are already in evidence, and the jury may afford whatever weight it desires to those circumstances. What Plaintiff purports to do, however, is to substitute the belief of one (Mr. Cheng) for that of another (Plaintiff). None of the authorities relied upon by Plaintiff provide any support for this proposition. Plaintiff's cited authorities regarding “custom and habit” are similarly unavailing. The sole decision cited by Plaintiff (See Dincau v. Tamayose (1982) 131 Cal.App.3d 780) allowed habit evidence to demonstrate the absence of negligence, with most of the evidence concerning actions occurring after the incident giving rise to the action. It is factually distinguishable on its face. Plaintiffs attempt to “bootstrap” evidence relative to Mr. Cheng as indicative of habit or custom of practice pursuant to Evidence Code section 1105 is simply misplaced. (See Larson v. Larsen (1925) 72 Cal. App. 169, 171 [“It is a fundamental rule of evidence that you cannot prove the commission of an act by showing the commission of similar acts by the same person at other times and under other circumstances. Such evidence is simply not relevant; it does not tend to prove the issue]. Plaintiff request to have Mr. Cheng’s belief be made into being Ms. Fua’s belief’ is simply without support. 6 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGYN aA Ww ew N Ill. CONCLUSION Ms. Fua has already testified about her beliefs and custom regarding taking taxicabs. Her beliefs and customs are the only beliefs that are relevant pursuant to CACI 3709. There is simply no legitimate basis for Mr. Cheng to testify regarding his beliefs/customs and somehow invite the jury to speculate that his subjective beliefs or opinions were known by Ms. Fua and that she had the same beliefs. Dated: June 3, 2015 CARLSON, CALLADINE & PETERSON By: ys See. COLIN C. MUNRO Attorneys for Defendants TAXI EQUIPMENT LEASING LLC and YELLOW CAB COOPERATIVE, INC. 7 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECALL JEFF CHENGCoO me NID PROOF OF SERVICE Ida Cristina Cruz Fua v. Joel Enrique Andino Sanchez, et al. San Francisco Superior Court Case No. CGC-11-515542 I am employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action. My business address is 353 Sacramento Street, 16th Floor, San Francisco, California 94111. On June 3, 2015, I served the following documents: 1 DEFENDANTS TAXI EQUIPMENT LEASING LLC AND YELLOW CAB COOPERATIVE, INC.’S BRIEF IN OPPOSITION TO PLAINTIFF’S REQUEST TO RECALL WITNESS JEFF CHENG TO TESTIFY RE HIS HABITS AND CUSTOMS IN SELECTING TAXI CABS, AND WHY HE CHOSE TO OCCUPY YELLOW CAB #609; and 2. DECLARATION OF CHRISTOPHER J. WEBER IN SUPPORT OF DEFENDANTS TAXI EQUIPMENT LEASING LLC AND YELLOW CAB COOPERATIVE, INC.’S BRIEF IN OPPOSITION TO PLAINTIFF’S REQUEST TO RECALL WITNESS JEFF CHENG TO TESTIFY RE HIS HABITS AND CUSTOMS IN SELECTING TAXI CABS, AND WHY HE CHOSE TO OCCUPY YELLOW CAB #609 in the manner indicated below, on the interested parties in said action at the following addresses (including fax numbers and email addresses, if applicable) as follows: Todd P. Emanuel, Esq. Telephone: (650) 369-8900 Mark D. Rosenberg, Esq. Facsimile: (650) 369-8999 Emanuel Law Group Email: todd@TEinjurylaw.com 702 Marshall Street, Suite 400 Email: mark@TEinjurylaw.com Redwood City, CA 94063 Attorneys for Plaintiff Fua D. Douglas Shureen, Esq. Telephone: (707) 525-5400 McMillian & Shureen LLP Facsimile: (707) 576-7955 50 Santa Rosa Avenue, Suite 200 Email: doug.shureen@memillanshureen.com Santa Rosa, CA 95404 Attorneys for Defendant Joel Enrique Andino Sanchez Gregory H. McCormick, Esq. Telephone: (510) 444-6800 Burnham Brown Facsimile: (510) 835-6666 1901 Harrison Street, 14th Floor Email: gmccormick@burnhambrown.com Oakland, CA 94612 Attorneys for Defendant Alan DaSilva and San Francisco Independent Taxi Assn. Robert S. Aaron, Esq. Telephone: (415) 438-7801 Aaron & Wilson, LLP Facsimile: (415) 438-7808 150 Post Street, Suite 400 Email: rsaaron@aaron-wilson.com San Francisco, CA 94108 Co-counsel for Defendants Taxi Equipment and Yellow Cab Cooperative, Inc. — BY_E-MAIL OR ELECTRONIC TRANSMISSION: Based on a Court Order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the email addresses listed. I did not receive, within a reasonable time after the transmission, any electronic message or other indication PROOF OF SERVICEthat the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 3, 2015, at San Francisco, California. SHARI L. HIIBEL PROOF OF SERVICE