Motion-Secondary: IDA CHRISTINA FUA CRUZ VS. JOEL ENRIQUE ANDINO SANCHEZ et al

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TODD P. EMANUEL (SBN 169301)

DEIRDRE O'REILLY MARBLESTONE (SBN 88008)

EMANUEL LAW GROUP
702 Marshall St., Ste. 400
Redwood City, CA 94063
Telephone: (650) 369-8900
Facsimile: | (650) 369-4228
Email: todd@teinjurylaw.com

Attorneys for Plaintiff
IDA CRISTINA CRUZ FUA

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

12/21/2015
Clerk of the Court
BY:ROMY RISK

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

IDA CRISTINA CRUZ FUA,
Plaintiff,

vs.

JOEL ENRIQUE ANDINO SANCHEZ, an
individual; CAROLINE MILLER, an
individual; TAXI EQUIPMENT LEASING
LLC, a limited liability company; SAN
FRANCISCO TAXI ASSOCIATION, a
corporation; YELLOW CAB
COOPERATIVE, INC., a Corporation; and
DOES 1 TO 50, inclusive.

Defendants.

|, TODD P. EMANUEL, declare:

1. | am an attorney at the Emanue

Case No. CGC-11-515542

DECLARATION OF TODD P EMANUEL IN
SUPPORT OF PLAINTIFF’S OPPOSITION
TO DEFENDANTS’ MOTION FOR
JUDGMENT NOT WITHSTANDING THE
VERDICT

Date: January 12, 2016

Time: 9:30 a.m.

Dept.: 608

Judge: Honorable Garrett Wong

Law Group, attorneys for Plaintiff

IDA FUA. | make this declaration of my own personal knowledge, except as to those

matters that | indicate are based on information and belief, and | would and could

competently testify to the matters set forth herein if called to testify.

DEcL oF TPE ISO oF PLAINTIFF’s Opp TO DeF’s JNOV Motion — Case No. CGC-11-5155422. Attached as Exhibit 1 is a true and correct copy of a portion of Yellow Cab’s
web site stating in part: “The wonderful diversity of San Francisco is reflected in our
drivers,”.

3. Attached as Exhibit 2 is a true and correct copy of the transcript from the
hearing of June 9, 2015 regarding plaintiff's request to recall Jeff Cheng.

| declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct of my own personal knowledge, except as to matters stated to
be based on information and belief, as to such matters | am informed and believe that they

are true and correct.

Executed this 21% day of December 2015, at Redwood City, California.

TODD P. EMANUEL, ESQ. ~

+2e

DEecL OF TPE ISO oF PLAINTIFF’s Opp TO DeF’s JNOV Motion — Case No. CGC-11-515542SF Yellow Cab Co-op : SF Taxi : San Francisco Taxi : SF Cab : San Francisco Yellow Ca... Page 1 of 3

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http://yellowcabsf.com/community/ 3/1/2015Deirdre O'Reilly Marblestone

From: Mary Jackson 

Sent: Tuesday, June 09, 2015 10:25 PM

To: Todd Emanuel; Deirdre O'Reilly Marblestone; FLDProduction ProductionFLD;
gwong@sftc.org

Subject: Motion re: Recalling Jeff Cheng

Attachments: Motion re Recalling Jeff Cheng.pdf

Counsel, per your request, attached is the motion regarding recalling Jeff Cheng, 6-9-15.

Mary JacksonoT A © BF WN BP

THE COURT: All right. We're back on the
record in the matter of Fua versus Sanchez. Record
should reflect the jury has been excused for the day. I
do have the request to recall Mr. Cheng in plaintiff's
case in chief to testify regarding his habit and customs
in selecting taxi cabs and why he chose to occupy Yellow
Cab 609.

So it's plaintiff's request. Ms. Marblestone.

MS. MARBLESTONE: Yes, Your Honor. Thank you
very much.

Your Honor, you will recall you sustained the
objections to the question posed to Mr. Cheng regarding
his custom and practice in using branded cabs. I just
wanted to briefly review the facts that have been
established.

Mr. -- Ms. Fua has testified that her custom
was always to use a branded cab. On the specific
occasion, the day of the accident, she has no specific
recollection of making a particular choice with regard
to this cab. In fact, what she testified to was that,

you know, it was a gentlemanly thing and that Jeff would

be the person who hailed the cabs. When the two of them

were traveling as a couple, as a unit together, Jeff
would be the person in charge of figuring out how they
were going to get around, what mode of transportation
and selecting the cab per se.

Mr. Cheng -- both the plaintiff and Mr. Cheng
1

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were standing on a cab line at the San Francisco

Airport. They were not standing on the independent

contractor line, and they were not standing on a gypsy

cab driver line. They were standing on the branded cab

line at the San Francisco Airport at the time that

this -- at the time that they got into this particular

cab.

Ms. Cheng testified -- excuse me, Ms. Fua

testified that they had an implicit understanding that

Jef£ would choose a reliable, safe, branded company, not

some random type of cab. And, in fact, I believe

Mr. Cheng testified that either Mr. Cheng or Ms. Fua, I

forget which one of them, one of the two testified they

were concerned for their safety. Jeff had previously

been mugged, he was very concerned with his safety and

wouldn't want to get in some random cab that could take

you someplace and injure you.

The law in this case that plaintiff is going

to be asking for the instruction about is with respect

to ostensible agency. And our papers set forth the

definition of ostensible agency. Ostensible agency can

also be an independent contractor and ostensible agent

as a principle.

Plaintiff's submit that the —- that

Mr. Cheng's belief that at the time he was entering a

cab that was a Yellow Cab branded cab that -- that that

information is relevant and should be admissible from

Mr. Cheng in order to establish Ms. Fua's reliance.

UNCERTIFIED ROUGH DRAFT TRANSCRIPTOY OF HW FB wN HB

Particularly in this case because Ms. Fua has no

particular memory on this particular day of selecting

the cab.

Her testimony is that when she and Jeff would

take a cab, Jeff would do the gentlemanly thing and hail

the cab. They had an implicit understanding as to the

type of cab that would be selected,

and that they shared

the same values with respect to traveling in a branded

cab as opposed to some random cab.

The Evidence Code 1105 says that evidence of

habit or custom is admissible to prove conduct on a

specified occasion. The cases that we have cited in our

brief basically say, among other things, that in a

situation, which is what we have here, when a person has

amnesia as a result of the injuries that were caused by

the defendant's negligence, and in this situation we

have Mr. Sanchez who, by his own testimony, says he was
traveling 60 to 65 miles an hour at the time of the
impact and admits his negligence in causing this
accident which resulted in Ms. Fua's amnesia. That in
this case -- the other cases that we cited when the
plaintiff's amnesia was caused as a result of the
defendant's negligence, in those cases, the Court
presumed -- they presumed -- that causation had been
established because they said public policy mitigates
against allowing the defendant a benefit for its own
negligence by precluding the plaintiff from offering

that kind of testimony.

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And the point being, the reason we cited those
cases to Your Honor was because if in those cases when
you have amnesia and the public policy dictates that
there be a presumption and that the -- excuse me, the
public policy dictates that the defendant not benefit
from its own negligence. And if presumption on
causation was presumed then so too in this case with
respect to Mr. Cheng's custom and practice of driving in
only a branded cab, that evidence is admissible is the
point of the citation of those cases.

THE COURT: I understand that defendants'

point that those cases are matters which involve strict

liability. So there may be a public policy. It's

separate and apart from this. They relate to the

causation issue, not to habit and custom and ostensible

agency, which is governed by CACI 3709.

So tell me why you think -- or how do you get
around that issue.

MS. MARBLESTONE: I don't think we get around
it. I think we're arguing by analogy. I think the
point being that if in those cases you can have a
presumed causation because you have amnesia. So too in
this case, when you have amnesia as a result of the
defendant's negligence you should be able to use the
actual testimony that you do have from the other portion
of the unit, the couple traveling together here, to
establish or to further buttress the information and the

evidence that we do have on custom and practice with

UNCERTIFIED ROUGH DRAFT TRANSCRIPToOo © ® YN OD HW & WH PB

respect to Ms. Fua's and Ms. (sic) Cheng's custom
practice of traveling in branded cabs.
As I said, they were standing on yellow
excuse me. They were standing on the cab line at
San Francisco Airport. He didn't just hail a cab at the
San Francisco Airport. They specifically stood on the
recognized branded cab line at the San Francisco
Airport. And I think because of that, the public policy
and Ms. Fua's amnesia, Mr. Cheng's custom and practice
with respect to using branded cabs should be admissible.
THE COURT: Okay. Mr. Munro.

MR. MUNRO: Your Honor, I think the starting

point for this, as we noted in our Opposition brief is

the CACI instruction which says that the relevant state

ef mind or the relevant belief has got to be that of a

plaintiff. And so we know, we've already got the
plaintiff's state of mind, and I agree with
Ms. Marblestone regarding the habit and custom evidence
in terms of the habit and custom of Ms. Fua would
absolutely be relevant, and she's testified about it.
She's testified about what her habit and custom was and
she's also testified about what she understands
Mr. Cheng's belief to have been.

So she already said stuff like, you know, he's
a safe guy, I thought -- I relied on the fact that he
was a safe guy as we put in here, but they never had any
discussion about it. They never communicated about it.

So what allowing Mr. Cheng to now come in and amplify

UNCERTIFIED ROUGH DRAFT TRANSCRIPTabout what his subjective belief was is in essence
asking the jury to substitute Ms. (sic) Cheng's belief
that's required in the ostensible agency instruction for
Ms. Fua's.

It's gotta be Ms. Fua's belief that's
relevant. We've got her testimony directly as to what
her habit and custom was. We've got her testimony as to
what she understood was the motivation behind Mr. Cheng.

Now, she said she had it, and it's just
because, oh, he's a safe guy. There's no discussion,
there's no communication between them. And what this
would require, in essence, is it would require the jury
to speculate that somehow Mr. Cheng formed a belief and
implicitly somehow communicated it to Ms. Fua so

| therefore this belief becomes Ms. Fua. That's why the
ostensible agency -- should be ostensible employee in
this case -- that instruction talks directly about Ms.
Pua.

We've had all the testimony about Ms. Fua.

Mr. Emanuel and Ms. Marblestone can use what she
testified about. She said she wanted something that's

reliable or reputable. She wanted something that wasn't

a gypsy taxi, et cetera. They've got all that.

What they want to do now is bring ina
subjective belief or opinion by Mr. Cheng and make that
somehow Ms. Fua's. There's no factual basis for that.

THE COURT: But the argument is not that it's

a subject belief, it's habit and custom.

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MR. MUNRO: But it can't -- she's already
testified what her habit and custom is. And she's also
testified that she's never discussed that with
Mr. Cheng. So she can't just mind read and say, oh,
well, his habit and custom is her habit and custom. All
she can say is, well, you know, I understood and we've
talked about that. She said, at any time prior to this
incident, had you discussed -- had a discussion with
Jeff about whether any taxi you took had to be a certain
kind of taxi. No. She's never had this discussion. So
how is it that his subjective belief somehow becomes
relevant to her subjective belief? I certainly
understand that they're entitled to get her habit and
custom in, and they have, but there is no basis to get
Mr. Cheng's habit and custom.

THE COURT: All right.

MS. MARBLESTONE: If I may?

THE COURT: Ms. Marblestone.

MS. MARBLESTONE: Your Honor, just briefly,
the sum total of the testimony that we're talking about
here is an additional five minutes from Mr. Cheng. And
Mr. Cheng's subjective state of mind with respect to his
custom and practice with respect to using branded cabs
is relevant in this particular instance because Ms. Fua
has amnesia. Ms. Fua did testify both in her
deposition, and I believe again at trial that, you know,

when they would travel together, Mr. Cheng was in charge

of making this decision. It's a gentlemanly chivalry

UNCERTIFIED ROUGH DRAFT TRANSCRIPTthing to do and, therefore, because they're traveling as
a unit, his belief becomes relevant. His custom and
practice with respect to using branded cabs, which
happens to be the same one that she had, but she has no
recollection on this particular instance.

She can tell us, and she did tell us, what her
custom and practice was in general, but with respect to
this particular incident, Ms. Fua had, so to speak,
ceded authority to Mr. Cheng to make this decision, and
Mr. Cheng's custom and belief is as stated. And on that
basis, I will submit it.

THE COURT: Very well, Court's considered the
arguments of counsel and the pleadings. The motion to
have Mr. Cheng testify as a witness is denied. Court's
considered also the relevance of the testimony under,
logically and legally, and under Evidence Code Section
352, the Court will state that it's done its weighing
balance and while there is a reference that it may only
take five or ten minutes, the Court really does not
believe that it will add to the testimony of Ms. Fua.
Court believes that there has been ample testimony as to

what Ms. Fua's practices are, her impressions as to what

Mr. Cheng does when a cab is acquired of the two of

them. I think frankly that the evidence that plaintiff
needs in this case has been established already by the

testimony of Ms. Fua, and for that matter in some ways

Ms. Fua testimony with regard to Mr. Cheng and his

general conduct as a gentleman has been well established
8

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in this case.
I would say that Mr. Cheng has shown his
earnestness with regard to his commitment to Ms. Fua

throughout the trial, and I do not think that Mr. Cheng

needs to testify any further with respect to this issue.

I think the issue is addressed by the evidence in this
case. Very well. All right. We'll see you on Thursday
at 9:30.

MR. MUNRO: Thank you, Your Honor.

MR. EMANUEL: Thank you, Your Honor.

MS. MARBLESTONE: Yes, Your Honor.

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