Motion,Ex Parte: IDA CHRISTINA FUA CRUZ VS. JOEL ENRIQUE ANDINO SANCHEZ et al

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ROBERT S. AARON (SBN 138903)
TIMOTHY C. WILSON (SBN 173928)

AARON & WILSON, ae ELECTRONICALLY

150 Post Street, Suite 40 FILED

San Francisco, California 94108

Telephone: (415) 438-7800 County of San Prencieco

Facsimile: (415) 438-7808 03/17/2015

Email: rsaaron@aaron-wilson.com Clerk of the Court

Email: tcewilson@aaron-wilson.com BY:MAURA RAMIREZ
Deputy Clerk

Attorneys for Defendants/Cross-Defendants
TAXI EQUIPMENT LEASING LLC,
YELLOW CAB COOPERATIVE, INC., TAXI
PROPERTY COMPANY, INC., WOLLEY,
LLC, JAMES GILLESPIE, HAL
MELLEGARD, NICK OLSEN, PAMELA
MARTINEZ, RICHARD WIENER, STEVEN

REIMERS
SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
IDA CRISTINA CRUZ FUA, Case No. CGC 11 515542

Consolidated with
Plaintiff, CGC-12-519794 and CGC-13-529705
DEFENDANTS/CROSS-DEFENDANTS
JAMES GILLESPIE AND YELLOW CAB
COOPERATIVE, INC.’S MOTION IN
LIMINE TO EXCLUDE EVIDENCE OF
PRIOR FELONY CONVICTIONS

(Evid, Code §§ 350, 352 and 788 and Penal
Code § 1203.4)

Vv.

JOEL ENRIQUE ANDINO SANCHEZ, an
Individual; CAROLINE MILLER, an
Individual; TAXI] EQUIPMENT LEASING
LLC, a Limited Liability Company; SAN
FRANCISCO INDEPENDENT TAXI
ASSOCIATION, a Corporation; YELLOW

CAB COOPERATIVE, INC., a
Corporation; and DOES 1 through 50,
Inclusive,
Complaint Filed: October 31, 2011
Defendants. X-Complaint Filed: May 13, 2014

Trial Date: March 9, 2015

AND RELATED CROSS-COMPLAINT.

meee

Defendants/Cross-Defendants JAMES GILLESPIE and YELLOW CAB
COOPERATIVE, INC. hereby move for an order in limine to preclude any reference, comment
or evidence of felony convictions secured against him approximately 25 years ago. The statutory

bases for the motion are Evidence Code sections 350 and 352 and Penal Code section 1203.
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Dfdts/Cross-Dfdts J. Gillespie & Yellow Cab’s Mot. in Lim. to Exclude Evidence of Prior Felony Convictions

Ma. Fey CotonThis Motion is made on the grounds that the convictions have been expunged per Penal
Code section 1203.4 and therefore inadmissible for the purposes of impeachment (see Evidence
Code § 788; People v. Field (4 App. Dist 1995) 31 Cal.App.4th 1778, 1787); and they are
irrelevant (Evid. Code § 350) with their probative value substantially outweighed by the likely
prejudicial effect (Evid. § 352) in that they are remote in time — approximately 25 years in the
past and Mr. Gillespie’s conduct in the intervening years has been exemplary (been the Assistant
Manager, Operations Manager and General Manager of three prominent taxi companies (Yellow,
Luxor and Desoto) in San Francisco over the last 15 years)

I FACTUAL BACKGROUND

A. Subject Incident

This case arises out of a motor vehicle accident occurring on April 4, 2011, on Highway
101, south of San Francisco Airport (“SFO”). Plaintiff was an unbelted rear seat passenger in a
taxi owned by defendant Da Silva and operated by defendant Sanchez per a medallion leased
through defendant Yellow Cab Cooperative, Inc. The accident occurred when the taxi rear ended
another vehicle causing injury to plaintiff.

B. Pleadings and Parties

The original complaint was filed on October 31, 2011 naming as defendants, the driver of|
the taxi, JOEL ENRIQUE ANDINO SANCHEZ, the owner of the medallion pursuant to which
the taxi was operated, CAROLYNN MILLER, and those persons and entities alleged to have
owned, operated, maintained and/or controlled the taxi, SAN FRANCISCO INDEPENDENT
TAXI ASSOCIATION, ASSOCIATION OF SAN FRANCISCO TAXI DRIVERS AND
MEDALLION HOLDERS, TAXI EQUIPMENT LEASING LLC and YELLOW CAB

COOPERATIVE, INC. The complaint contained two causes of action: 1) Negligence; and 2)

Negligence per se for violation of Vehicle Code section 22350.

On April 19, 2012, Alan Silva was substituted for DOE 1, as the owner of the vehicle
Sanchez was operating at the time of the subject incident.

On May 22, 2013, defendant SAN FRANCISCO INDEPENDENT TAXI

ASSOCIATION was dismissed.
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Dfdts/Cross-Dfdts J. Gillespie & Yellow Cab’s Mot. in Lim. to Exclude Evidence of Prior Felony Convictions

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of.

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On January 17, 2014, the court granted summary judgment in favor of defendant
CAROLYNN MILLER.

On March 6, 2014, plaintiff filed a First Amended Complaint adding causes of action for
Negligence per se based upon a violation of Vehicle Code section 17150, and alter ego/single
enterprise, and naming the following new defendants: TAX] PROPERTY COMPANY, INC.,
WOLLEY, LLC, JAMES GILLESPIE, HAL MELLEGARD, NICK OLSEN, PAMELA
MARTINEZ, RICHARD WIENER, STEVEN REIMERS and DMITRI ERENKOV. These new
defendants, along with defendants YELLOW CAB COOPERATIVE, INC. and TAXI
EQUIPMENT LEASING, LLC were all alleged to be the alter ego of the other and/or engaged in
a single enterprise. SAN FRANCISCO INDEPENDENT TAXI ASSOCIATION was also added
back as a defendant.

On May 9, 2014, the court granted defendant SANCHEZ leave to file a cross-complaint.
The cross-complaint was filed on May 13, 2014. It alleged two causes of action, Statutory
Indemnity per Labor Code section 2802 and Declaratory Relief. Cross-defendants included
YELLOW CAB COOPERATIVE, INC., TAXI EQUIPMENT LEASING, LLC, TAXI
PROPERTY COMPANY, INC., WOLLEY, LLC, SAN FRANCISCO INDEPENDENT TAXI
ASSOCIATION, JAMES GILLESPIE, HAL MELLEGARD, NICK OLSEN, PAMELA
MARTINEZ, RICHARD WIENER, STEVEN REIMERS and DMITRI ERENKOV.

On August 11, 2014, cross-complaint SANCHEZ dismissed cross-defendant SAN
FRANCISCO INDEPENDENT TAXI ASSOCIATION.

On September 29, 2014, plaintiff dismissed defendant SAN FRANCISCO
INDEPENDENT TAXI ASSOCIATION.

Cc. Felony Conviction

On March 2, 2015, during the course of the final session of defendant James Gillespie’s
deposition, plaintiff's counsel questioned Mr. Gillespie concerning prior felony convictions. Mr.
Gillespie ultimately testified: 1) that he had in fact been convicted of multiple felony counts in
the early 1990’s in Modesto, California, 2) that the convictions arose out of securities violations;

3) that he served less than 270 days in a County jail as a result of these convictions; and 4) that

lr Feteny Cowrasion dos 3

Dfdts/Cross-Dfdts J. Gillespie & Yellow Cab’s Mot. in Lim. to Exclude Evidence of Prior Felony Convictionsthe convictions were initially reduced to misdemeanors and then “expunged.”

D. Anticipated Use of Felony Convictions by Plaintiff

By reason of this line of questioning, defendants anticipate that plaintiff will attempt to
use these felony convictions to impeach Mr. Gillespie at the time of trial.

I. LEGAL ARGUMENT

A. Statutory Basis

Evidence Code section 350 states:

No evidence is admissible except relevant evidence.
(Evid. Code § 350.)
Evidence Code section 352 provides:

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.)

Evidence Code section 788 provides, in pertinent part:

For the purpose of attacking the credibility of a witness. it may be
shown by the examination of the witness or by the record of the
judgment that he has been convicted of a felony unless:

(c) The accusatory pleading against the witness has been dismissed
under the provisions of Penal Code Section 1203.4. but this exception
does not apply to any criminal trial where the witness is being
prosecuted for a subsequent offense.

(Evid. Code § 788.)

Penal Code section 1203.4 provides, in pertinent part:

(a)(1) In any case in which a defendant has fulfilled the conditions of

probation for the entire period of probation, or has been discharged
prior to the termination of the period of probation. or in any other case
in which a court, in its discretion and the interests of justice.
determines that a defendant should be granted the relief available
under this section, the defendant shall. at any time after the termination
of the period of probation, if he or she is not then serving a sentence
for any offense. on probation for any offense. or charged with the
commission of any offense. be permitted by the court to withdraw his
or her plea of guilty or plea of nolo contendere and enter a plea of not

4

Dfdts/Cross-Dfdts J. Gillespie & Yellow Cab’s Mot. in Lim, to Exclude Evidence of Prior Felony Convictionsguilty: or. if he or she has been convicted after a plea of not guilty. the
court shall set aside the verdict of guilty: and. in either case. the court
shall thereupon dismiss the accusations or information against the
defendant and except as noted below. he or she shall thereafter be
released from all penalties and disabilities resulting from the offense of
which he or she has been convicted. except as provided in Section
13555 of the Vehicle Code. The probationer shall be informed. in his
or her probation papers. of this right and privilege and his or her right,
if any. to petition for a certificate of rehabilitation and pardon. The
probationer may make the application and change of plea in person or
by attorney, or by the probation officer authorized in writing...

(Evid. Code § 788.)

B. An Expunged Conviction May Not be Used to Impeach

Evidence Code section 788 makes clear that an expunged conviction may not be used for
impeachment in a civil or criminal trial. (See Evidence Code § 788; People v. Field (4" App.
Dist 1995) 31 Cal.App.4th 1778, 1787 (“The California Legislature has seen fit to render
convictions expunged pursuant to section 1203.4 as incompetent impeachment evidence for
ordinary witnesses in civil or criminal trials.”).

Defendant James Gillespie makes the following offer of proof:

1) James Gillespie was convicted of multiple felony counts in the early 1990’s in
Modesto, California;

2) that the convictions arose out of securities violations;

3) that Mr. Gillespie was sentenced to 270 days in a County work furlough program as a
result of these convictions, and served less than 200 days; and

4) that the convictions were initially reduced to misdemeanors and then “expunged” per
Penal Code section 1203.4.

As referenced above, plaintiff first indicated an intent to use these felony convictions for

purposes of impeachment on March 2, 2015, the last session of Mr. Gillespie’s deposition. Mr.

Gillespie is prepared to testify as indicated above and the undersigned is in the process of
obtaining certified copies of the order of expungement. By reason thereof, plaintiff should be
precluded from any reference, comment or use of these convictions.

Cc. The Convictions are so Remote in Time as to be Irrelevant

Felony convictions that are too remote in time may be excluded by trial courts as the

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Dfdts/Cross-Dfdts J. Gillespie & Yellow Cab’s Mot. in Lim. to Exclude Evidence of Prior Felony Convictions

se Feloy Conlonexistence of the felonies become less relevant to the subject litigation. (See People v. Beagle, 6
Cal.3d 441, 453 (later superseded by statute as it applies to criminal proceedings, but not as to
civil proceedings); see People v. Lassell (1980) 108 Cal.App.3d 720, 724; see People v. Antick
(1975) 15 Cal.3d 79, 98.) It has been noted that “[t]he remoteness consideration mandated by
Beagle was predicated on the proposition that even as to felonies clearly involving dishonest
conduct, ‘if it occurred long before and has been followed by a legally blameless life, [it] should
generally be excluded on the ground of remoteness.” (People v. Boyd (1985) 167 Cal.App.3d
36, 44 (citing People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1).)

Defendant James Gillespie makes the following as an additional offer of proof:

1) Since the felony convictions referenced herein, and post-conviction matters
related thereto, I have had no further involvement with the criminal justice system. Stated
otherwise, I have led a legally blameless life.

2) Over the last 15 years, I have been the Assistant Manager, Operations Manager
and General Manager of three prominent taxi companies (Yellow, Luxor and Desoto) in San
Francisco. I have also been President of Yellow cab for the last two years and President twice,
during the last 13 years, of the Taxicab Paratransit Association of California.

Per the authorities cited above, therefore, the convictions are irrelevant per Evidence
Code section 350.

D. Probative Value is Substantially Outweighed by the Likely Prejudice

Twenty-five years post conviction, and relevance limited to the issue of credibility, what
possible probative value can such convictions have? At best, the probative value of such
convictions is marginal, more likely the probative value is nil. The flip side of the equation is

prejudicial effect. As the court well knows, the likely prejudicial effect of these convictions is

substantial. Felony convictions are generally viewed by the public quite negatively. There is
certainly no reason to believe otherwise in the case of Mr. Gillespie regardless of his testimony.
Given Mr. Gillespie’s prominent position at Yellow Cab, i.e., General Manager, i.e., in charge of
the entire operation directly under the Board of Directors, admission of these felony convictions

will likely tarnish, rather dramatically, Yellow Cab Cooperative’s entire defense, not to mention
sent 6
Dfdts/Cross-Dfdts J. Gillespie & Yellow Cab’s Mot. in Lim. to Exclude Evidence of Prior Felony ConvictionsMr. Gillespie’s own defense.
Til. CONCLUSION
For all the foregoing reasons, defendants respectfully requests that an order in limine to

preclude any reference, comment or evidence of felony convictions secured against him.

oy

Dated: March 4, 2015 AARON & WILSON, LLP

By : a
ROBERT S. en
Attorneys for Def¢ndants/Cross-Defendants
TAXI EQUIPMENT LEASING LLC, YELLOW
CAB COOPERATIVE INC., TAXI PROPERTY

(Sout ANY, INC., WOLLEY, LLC, JAMES
LESPIE, HAL MELLEGARD, NICK
OLSEN, PAMELA MARTINEZ, RICHARD

WIENER, STEVEN REIMERS

stant end 7

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Fua v. Sanchez

San Francisco County Superior Court Case No. CGC 11 515542 Consolidated with
San Francisco County Superior Court Case No. CGC 12 519794 and

San Francisco County Superior Court Case No. CGC 13 529705

Our File No. 0845

AFFIDAVIT OF SERVICE
STATE OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO
I, Robert S. Aaron, declare:
lam a citizen of the United States, over 18 years of age and not a party to the within
action. I am self-employed in the City and County of San Francisco; my business address is 150
Post Street, Suite 400, San Francisco, California, 94108.

On March 4, 2015, I served the attached and/or enclosed:
DEFENDANTS/CROSS-DEFENDANTS JAMES GILLESPIE AND YELLOW CAB
COOPERATIVE, INC.’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PRIOR
FELONY CONVICTIONS

on all parties in this action, at the following address(es):

Todd P. Emanuel, Esq. Mitchell E. Green, Esq.
Mark D. Rosenberg, Esq. Law Office of Mitchell E. Green
Emanuel Law Group Post Office Box 630550
702 Marshall Street, Suite 400 Simi Valley, CA 93063
Redwood City, CA 94063 Fax: (805) 823-0916
Fax: (650) 369-8999 Tel: (805) 823-0915
Tel: (650) 369-8900 Email: MitchGreenLaw@aol.com
Email: Todd@TEinjurylaw.com Counsel for Plaintiff, Allstate Insurance Co.

Email: Mark@TEinjurylaw.com
Counsel for Plaintiff, Ida Cristina Cruz Fua

D. Douglas Shureen, Esq. Gregory H. McCormick, Esq.
McMillan & Shureen LLP Burnham Brown
50 Santa Rosa Avenue, Suite 200 1901 Harrison Street, 14th Floor
Santa Rosa, CA 95404 Oakland, CA 94612
Fax: (707) 576-7955 Fax: (510) 835-6666
Tel: (707) 525-5400 Tel: (510) 444-6800
Email: doug.shureen@memillanshureen.com Email: gmccormick@burnhambrown.com
Counsel for Defendant/Cross-Complainant, Counsel for Defendant, Alan DaSilva & SF
Joel Enrique Andino Sanchez Independent Taxi Association.

Colin C. Munro, Esq.

Carlson, Calladine & Peterson LLP

353 Sacramento Street, 16th Floor

San Francisco, CA 94111
Fax: (415) 391-3898
Tel: (415) 391-3911
Email: cmunro@ccplaw.com
Co-Counsel for Defendants, Taxi Equipment Leasing LLC, Yellow Cab Cooperative, Inc.

1

Proof of Serviceeo

Fua v, Sanchez

San Francisco County Superior Court Case No. CGC 11 515542 Consolidated with
San Francisco County Superior Court Case No. CGC 12 519794 and

San Francisco County Superior Court Case No. CGC 13 529705

Our File No. 0845

Service was accomplished by causing either an original or a true copy of the above-
referenced document(s) to be distributed as follows:

BY MAIL: I caused such document(s) to be placed in a sealed envelope, addressed as
indicated above, with prepaid first-class postage thereon, and then placed the envelope(s) for
collection and mailing, in accordance with the firm’s ordinary business practice. I am readily
familiar with the firm's ordinary business practice for collection and processing of
correspondence for mailing with the United States Postal Service. Under that practice
correspondence for mailing is deposited with United States Postal Service on the date indicated
for service, with prepaid first-class postage thereon.

Xl BY EMAIL: I caused such documents to be transmitted via email to the parties indicated
above, at their respective email addresses.

BY HAND DELIVERY: I caused such documents to be hand delivered to the addresses
indicated above.

VIA FACSIMILE: I caused such documents to be transmitted via facsimile to the parties
indicated above, at their respective facsimile numbers.

VIA EXPRESS CARRIER: I caused such documents to be collected by an agent for the
United States Postal Service, United Parcel Service, Federal Express or other overnight carrier,
to be delivered by way of overnight mail to the addresses indicated above.

BY E-SERVICE: | caused such documents to be transmitted via email to the parties
indicated above, at their respective email addresses through the court’s e-filing website.

I declare under penalty of perjury under the laws of the State of California, that the
foregoing is true and correct.
>

Executed on March 4, 2015, at San Francisco, California. : /

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Proof of Service