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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
San Francisco, CA 94111
Telephone: (415) 391-3911
Facsimile: (415) 391-3898
Attorneys for Defendants
TAXI EQUIPMENT LEASING LLC and YELLOW CAB
COOPERATIVE, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
IDA CRISTINA CRUZ FUA,
Plaintiff,
v.
JOEL ENRIQUE ANDINO SANCHEZ, and
individual; CAROLINE MILLER, an
individual; TAX] 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,
Defendants.
Defendants Yellow Cab Cooperative, Inc. and Taxi Equipment Leasing, LLC, oppose
Plaintiff's motion in limine No.9 as follows:
1 Case No.:
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
MAR 16 2015
Clerk of the Court
BY: CAROL BALISTRERI
Deputy Clerk
CASE NO,: CGC-11-515542
Consolidated with CGC-12-519794 and CGC-13-
529705
DEFENDANTS TAXI EQUIPMENT
LEASING, LLC AND YELLOW CAB
COOPERATIVE, INC.’S OPPOSITION TO
PLAINTIFF’S MOTION IN LIMINE NO. 9 TQ
STRIKE DEFENDANT’S AFFIRMATIVE
DEFENSE OF COMPARATIVE FAULT
BASED ON PLAINTIFF’S FAILURE TO USE
A SEATBELT IN THE BACK SEAT OF
YELLOW CAB # 609, OR IN THE
ALTERNATIVE REQUEST FOR 402
HEARING RE SAME
Date: March 16, 2015
Time: 9:30 a.m.
Dept: 608
Judge: Garrett L. Wong
CGC-11-515542
DEFENDANTS YELLOW CAB AND TAXI EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFFS
MOTION IN LIMINE NO. 9I. INTRODUCTION
Plaintiff's motion has no factual nor legal basis. Without citation to case law, and ignoring
direct testimony, Plaintiff asserts that Defendants cannot prove a critical element of their
affirmative defense that Plaintiff was negligent because she was not wearing a seatbelt at the time
of the incident. Plaintiff is wrong. First, Plaintiff is wrong that there is no evidence that the
vehicle had a functioning seatbelt available to Ms. Fua. Second, Plaintiff provides no basis for
striking Defendant’s affirmative defense based upon alleged intentional or negligent spoliation.
Finally, Plaintiff provides no basis for any Evidence Code Section 402 hearing.
i. ARGUMENT.
A. Defendants have ample evidence from which a jury could conclude that a
functional seatbelt was available to Ms, Fua to use at the time of the incident’.
Plaintiff appears to assume that Defendants must prove that someone actually tested the
seatbelt on the day before the accident to prove that it was functioning. (Plaintiff's MIL 9, pg
4:11-14). Notso. They provide no case citation in support of this proposition. Case law actually
holds the opposite; In Lara v. Nevitt (2004), 123 Cal. App. 4° 454, Plaintiff Lara, a trucker who
was sleeping in a sleeper berth, was injured during a collision. Defendant asserted a scatbelt
defense, arguing that Lara should have worn a seatbelt while in the sleeper berth, There was no
evidence that anyone tested the belt on the day. Nevertheless, the court rejected Lara’s argument
that Defendant could not prove that a functional belt was available, stating:
“Both Lara and his son Victor testified that the sleeper berth was equipped with a
safety restraint at the time of the accident. Victor testified that truckers do not
ordinarily use the safety restraint when sleeping in the sleeper berth because it is
uncomfortable to sleep that way. He explained that the safety restraint in the
sleeper berth was “like a seat belt. If you put it around you, you got to put it on real
tight; you can't move at all. I mean, it's not comfortable sleeping being tied down.”
The jury could reasonably infer that the belt worked since Victor explained how it
worked, and there was no testimony from which the jury might infer it was not
: Plaintiff has formally admitted that she did not use a seatbelt during the incident at issue. See
Plaintiff's Response to Request for Admissions, Set 2 Propounded by Defendant Yellow Cab
Cooperative Inc., Request 3; Attached to the Declaration of C. Weber as Exhibit A).
2 Case No.:_ CGC-11-515542
DEFENDANTS YELLOW CAB AND TAXI EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFF'S
MOTION IN LIMINE NO.9oD em NY DH WA BF Ww HY
working at the time of the accident.” Lara v. Nevitt, 123 Cal. App. 4th 454, 458,
19 Cal. Rptr. 3d 865, 867-68 (2004).
Defendants have direct testimony from Mr. Sanchez that the seatbelt was functioning on
the day of the incident ~ simply ignored by Plaintiff in her Motion. On March 27, 2012, during
his deposition, Mr. Sanchez testified that the vehicle he was driving at the time of the accident had
working seatbelts at the back, (Deposition of Mr. Sanchez, pg 70:4-6, Exhibit B to the
Declaration of C. Weber). Defendants also have direct testimony from Mr. DaSilva, who drove
the vehicle hours before the accident, that the vehicle had working seatbelts, including the seatbelt
that could and should have been used by Plaintiff. (Deposition of Mr. DaSilva, pg 71:5-72:3;
Exhibit C to the Declaration of C. Weber). While Plaintiff can argue that the jury should not
believe this testimony — for whatever reason ~ they provide no basis for determining as a matter of
law that Defendant’s cannot prove the seatbelts were functioning.
Plaintiff's second argument that Dr. Shattuck “stated that he cannot prove that the seatbelts
were working on April 4, 2011” is specious and disingenuous. (Plaintiff's MIL 9, pg 4:18-20).
Plaintiff makes this assertion referencing PART of a response given by Dr. Shattuck to a question.
Reading Dr, Shattuck’s response in its entirety, shows Dr. Shattuck made NO such admission, and
in fact summarized why he concluded there were working belts:
Q. Do you have sufficient evidence, from your view and inspections of Taxi 609,
to tell me whether the scat belt where Ida was seated was in a functional working
order on April 4 of 2011?
A. We have no reason to believe they were not. Obviously we don’t have any
photos of them at the time. But the way those seat belts are mounted, it would
be very difficult for the shoulder portion to be behind the seat for example.
That would be very unlikely. We have no evidence that something else had
happened. We do know from ~ we do have testimony from Mr. Da Silva that
he actually had checked those belts, as well, routinely. He also drove the cab,
And I think Mr. Sanchez indicates that the seat belts were in functional order.
And we checked them as well. And we know from Mr. Cheng that he doesn’t
remember seeing them one way or the other, He said that he looked at the
interior of the cab, but it sounds like it’s more whether it’s clean or not or
3 Case No. CGC-11-515542
DEFENDANTS YELLOW CAB AND TAXI EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFE’S
MOTION IN LIMINE NO. 9function belt or not. And he doesn’t recall making any determination about
that before getting in the cab.
(Deposition of Dr. Shattuck, pg 53:4-25; Exhibit D to the Declaration of C. Weber;
emphasized portion is that portion of the response omitted from Plaintiff's MIL).
Dr. Shattuck went further, and explained that he tested the retractor of the seatbelt, which
operates during any incident to lock the belt in place — preventing an occupant from flying
unrestrained in the vehicle as happened with Ms. Fua. His testing of the retractor showed that it
was operational and working. (Deposition of Dr. Shattuck, pg 58:7-12; Exhibit E to the
Declaration of C. Weber). Dr. Mason, another defense expert also testified that the seatbelt was
functioning at the time of the incident:
“Q. Do you have a - any opinion as to whether there was a functional working seatbelt
where Ida Fua was seated on April 4, 2011?
A. I believe the seatbelt was functioning and working.
Q. Based on what?
A. We removed the coil, the seatbelt retractor — when I saw we, Mark Shattuck did it to be
honest, but we agreed to do that on the January 2014 inspection. He remained behind and
removed it. 1 inspected it after the case, and it was functioning. After the fact | inspected
it in February of 2015. The buckle is there. I believe the latch plate was lost after it was
cut and the latch plate was in place, and I believe that if Ms. Ida Fua climbed into the
yellow cab and there wasn’t a functioning seatbelt she should have said something and
gotten a functional seatbelt or gotten out of the cab and gotten in another one.” (Rough
Deposition Transcript of Dr. Mason, pg 27:2-19; Exhibit F hereto).
Dr. Mason also testified that he tested the buckle (also called a “receiver” of the seat belt
available to Plaintiff. (Rough Deposition Transcript of Dr. Mason, pg 35:21-36:11; Exhibit G to
the Declaration of C. Weber).
Plaintiff also makes much of the fact that at the time of the inspection in 2014, the clasp
that would normally have been attached to Plaintiff*s seatbelt could not be found. From that,
Plaintiff apparently concludes that Defendants cannot show there was a clasp at the time of the
accident and thus cannot show the seat belt worked. (Plaintiff's MIL, pg 4:27-5:2). This
argument is fallacious. As the experts testified, even in accidents where a seat belt was not worn,
4 Case No,:_ CGC-11-515542
DEFENDANTS YELLOW CAB AND TAXI EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFF'S
MOTION IN LIMINE NO. 9paramedics sometimes cut the seat belts because they are in the way. Once cut, the clasp (also
called a “latch”) can be unattached from the remainder of the belt. While Plaintiff is free to argue
that the “missing” clasp is an indication that the clasp was not there at the.time of the accident,
there is no basis for such determination as a matter of law. This is particularly true given the
testimony by the witnesses — described above - that the seat belt was operational and functional
before the accident. For example, if a seatbelt is damaged during an accident, using Plaintiff's
argument, a defendant would not be able to prove that it functioned before the accident. Plaintiff
provides no case supporting such a proposition.
B. Plaintiff's argument that Defendants lost, misplaced or intentionally
concealed evidence has no merit.
Plaintiff asserts — with no facts cited in support — that the seat belt clasp went missing
sometime after the taxi was taken to Yellow Cab’s premises after the accident. Plaintiff's base
this assertion on an assumption without any factual support ~ that because Ms, Fua was not seat
belted at the time of the accident, the seat belt “would not have been cut at the scene of the
collision by any emergency responder.” (Plaintiff's MIL 9, pg 5:8-12). They provide no basis for
this assumption, nor any citation to evidence. In fact, as Dr. Mason testified, emergency
responders do sometimes cut seat belts in vehicles even though they were not being used. (Rough
Deposition of Dr. Mason, pg 24:19-25:9; Exhibit H to the Declaration of C. Weber), While
Plaintiff, depending upon the evidence, may be able to argue that the belt was actually cut after the
vehicle was taken to Yellow Cab, she provides NO basis for striking the seat belt defense.
Plaintiff's assertion — without any factual support — that Defendant somehow intentionally
spoliated evidence is also wrong. During Dr. Mason’s deposition, as can be seen from Exhibit H,
Plaintiff suggested that Dr. Shattuck had actually cut the seat belt and removed it. At the
deposition of Dr. Raphael, the reason for this assertion became apparent ~ Dr. Raphael claimed
5 Case No. CGC-11-515542
DEFENDANTS YELLOW CAB AND TAX] EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFF'S
MOTION IN LIMINE NO. 9wn
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that when she inspected the vehicle on January 3, 2014 with the other experts — the seat belt and
seat belt retractor had been removed, most likely by Dr. Shattuck, and she thus had been denied
the opportunity. to inspect it.. Dr. Raphael supported her testimony that the retractor and belt had
been removed by testifying that she was at the inspection for approximately 4 hours and the belt
and retractor had clearly been removed before she got there. (Rough Deposition Transcript of Dr.
Raphael, pg 6:24-7:5, pg 13:21-14:9, pg 17:8-26; Exhibit I to the Declaration of C. Weber). She
then referenced numerous photographs that she said showed definitively that the belt and retractor
had been removed before she had the opportunity to inspect them, even suggesting that Dr.
Braun’s photographs (Dr, Braun is Plaintiff's Accident Reconstruction expert) would also show
the missing parts. When shown Dr. Braun’s photograph, Dr. Raphael immediately had to concede
that all her testimony regarding the missing retractor (which contained the belt) was wrong. The
retractor (and the belt) was clearly visible in the vehicle at the time of her inspection but she had
somehow - despite having been there for 4 hours ~ been unable to find it! (Rough Deposition
Transcript of Dr. Raphael, pg 21:15-22:16; Exhibit J to Declaration of C. Weber).
C. Plaintiff has no basis for a section 402 hearing.
It is a question of fact, for the jury, whether there was a functioning seat belt at the time of
the accident. There is sufficient evidence for a jury, discussed above, to determine whether the
seat belt was functioning at the time of the accident. Because the trial court’s function is merely to
determine whether there is sufficient evidence to permit a jury to decide the question, there is no
reason for a section 402 hearing. (People v. Lucas, (1995) 12 Cal. 4" 415),
ill. CONCLUSION
6 Case No.:_ CGC-11-515542
DEFENDANTS YELLOW CAB AND TAX] EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFF'S
MOTION IN LIMINE NO, 9Plaintiffs motion has no basis in fact nor law. Because Defendants have sufficient
evidence for a jury to determine that a functional seatbelt was available to Ms. ua at the time of
the accident, the motion should be denied in its entirety.
Dated: March 9, 2015 CARLSON, CALLADINE & PETERSON LLP
ROBERT M. PETERSON
COLIN C. MUNRO
CHRISTOPHER J. WEBER
Attorneys for Defendants
TAXI EQUIPMENT LEASING LLC and
YELLOW CAB COOPERATIVE, INC.
7 Case No.:_ CGC-11-515542
DEFENDANTS YELLOW CAB AND TAXI EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFF'S
MOTION IN LIMINE NO. 9a
PROOE OF SERVICE
Ida Cristina Cruz Fua v. Joel Enrique Andino Sanchez, et al.
San Francisco Superior Court Case No. CGC-11-515542
Iam 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 March 16, 2015, 1 served the following document: DEFENDANTS TAXI
EQUIPMENT LEASING, LLC AND YELLOW CAB COOPERATIVE, INC’S
OPPOSITION TO PLAINTIFF’S MOTION JIN LIMINE NO. 9 TO STRIKE
DEFENDANT’S AFFIRMATIVE DEFENSE OF COMPARATIVE FAULT BASED ON
PLAINTIFF’S FAILURE TO USE A SEATBELT IN THE BACK SEAT OF YELLOW
CAB # 609, OR IN THE ALTERNATIVE REQUEST FOR 402 HEARING RE SAME 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. Dougias Shureen, Esq. Telephone: (707) 525-5400
MeMillian & 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: gmecormick@burnhambrown.com
Oakland, CA 94612 Attorneys for Defendant Alan DaSilva and
San Francisco Independent Taxi Assn.
Mitchell E. Green, Esq. Telephone: (805) 823-0915
Law Offices of Mitchell E. Green Facsimile: (805) 823-0916
P, O. Box 630550 Email: mitchgreenlaw@aol.com
Simi Valley, CA 93063 Attorneys for Plaintiff Alistate Insurance Co.
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 kquipment
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. 1 did not receive,
within a reasonable time after the transmission, any electronic message or other indication
that the transmission was unsuccessful.
PROOF OF SERVICEI declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct, Executed on March 16, 2015, at San Francisco, California.
+ Re
¢
SHARIL. HIBEL
PROOF OF SERVICE
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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 San Francisco, CA 94111 Telephone: (415) 391-3911 Facsimile: (415) 391-3898 Attorneys for Defendants TAXI EQUIPMENT LEASING LLC and YELLOW CAB COOPERATIVE, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO IDA CRISTINA CRUZ FUA, Plaintiff, v. JOEL ENRIQUE ANDINO SANCHEZ, and individual; CAROLINE MILLER, an individual; TAX] 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, Defendants. Defendants Yellow Cab Cooperative, Inc. and Taxi Equipment Leasing, LLC, oppose Plaintiff's motion in limine No.9 as follows: 1 Case No.: ELECTRONICALLY FILED Superior Court of California, County of San Francisco MAR 16 2015 Clerk of the Court BY: CAROL BALISTRERI Deputy Clerk CASE NO,: CGC-11-515542 Consolidated with CGC-12-519794 and CGC-13- 529705 DEFENDANTS TAXI EQUIPMENT LEASING, LLC AND YELLOW CAB COOPERATIVE, INC.’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 9 TQ STRIKE DEFENDANT’S AFFIRMATIVE DEFENSE OF COMPARATIVE FAULT BASED ON PLAINTIFF’S FAILURE TO USE A SEATBELT IN THE BACK SEAT OF YELLOW CAB # 609, OR IN THE ALTERNATIVE REQUEST FOR 402 HEARING RE SAME Date: March 16, 2015 Time: 9:30 a.m. Dept: 608 Judge: Garrett L. Wong CGC-11-515542 DEFENDANTS YELLOW CAB AND TAXI EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFFS MOTION IN LIMINE NO. 9I. INTRODUCTION Plaintiff's motion has no factual nor legal basis. Without citation to case law, and ignoring direct testimony, Plaintiff asserts that Defendants cannot prove a critical element of their affirmative defense that Plaintiff was negligent because she was not wearing a seatbelt at the time of the incident. Plaintiff is wrong. First, Plaintiff is wrong that there is no evidence that the vehicle had a functioning seatbelt available to Ms. Fua. Second, Plaintiff provides no basis for striking Defendant’s affirmative defense based upon alleged intentional or negligent spoliation. Finally, Plaintiff provides no basis for any Evidence Code Section 402 hearing. i. ARGUMENT. A. Defendants have ample evidence from which a jury could conclude that a functional seatbelt was available to Ms, Fua to use at the time of the incident’. Plaintiff appears to assume that Defendants must prove that someone actually tested the seatbelt on the day before the accident to prove that it was functioning. (Plaintiff's MIL 9, pg 4:11-14). Notso. They provide no case citation in support of this proposition. Case law actually holds the opposite; In Lara v. Nevitt (2004), 123 Cal. App. 4° 454, Plaintiff Lara, a trucker who was sleeping in a sleeper berth, was injured during a collision. Defendant asserted a scatbelt defense, arguing that Lara should have worn a seatbelt while in the sleeper berth, There was no evidence that anyone tested the belt on the day. Nevertheless, the court rejected Lara’s argument that Defendant could not prove that a functional belt was available, stating: “Both Lara and his son Victor testified that the sleeper berth was equipped with a safety restraint at the time of the accident. Victor testified that truckers do not ordinarily use the safety restraint when sleeping in the sleeper berth because it is uncomfortable to sleep that way. He explained that the safety restraint in the sleeper berth was “like a seat belt. If you put it around you, you got to put it on real tight; you can't move at all. I mean, it's not comfortable sleeping being tied down.” The jury could reasonably infer that the belt worked since Victor explained how it worked, and there was no testimony from which the jury might infer it was not : Plaintiff has formally admitted that she did not use a seatbelt during the incident at issue. See Plaintiff's Response to Request for Admissions, Set 2 Propounded by Defendant Yellow Cab Cooperative Inc., Request 3; Attached to the Declaration of C. Weber as Exhibit A). 2 Case No.:_ CGC-11-515542 DEFENDANTS YELLOW CAB AND TAXI EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO.9oD em NY DH WA BF Ww HY working at the time of the accident.” Lara v. Nevitt, 123 Cal. App. 4th 454, 458, 19 Cal. Rptr. 3d 865, 867-68 (2004). Defendants have direct testimony from Mr. Sanchez that the seatbelt was functioning on the day of the incident ~ simply ignored by Plaintiff in her Motion. On March 27, 2012, during his deposition, Mr. Sanchez testified that the vehicle he was driving at the time of the accident had working seatbelts at the back, (Deposition of Mr. Sanchez, pg 70:4-6, Exhibit B to the Declaration of C. Weber). Defendants also have direct testimony from Mr. DaSilva, who drove the vehicle hours before the accident, that the vehicle had working seatbelts, including the seatbelt that could and should have been used by Plaintiff. (Deposition of Mr. DaSilva, pg 71:5-72:3; Exhibit C to the Declaration of C. Weber). While Plaintiff can argue that the jury should not believe this testimony — for whatever reason ~ they provide no basis for determining as a matter of law that Defendant’s cannot prove the seatbelts were functioning. Plaintiff's second argument that Dr. Shattuck “stated that he cannot prove that the seatbelts were working on April 4, 2011” is specious and disingenuous. (Plaintiff's MIL 9, pg 4:18-20). Plaintiff makes this assertion referencing PART of a response given by Dr. Shattuck to a question. Reading Dr, Shattuck’s response in its entirety, shows Dr. Shattuck made NO such admission, and in fact summarized why he concluded there were working belts: Q. Do you have sufficient evidence, from your view and inspections of Taxi 609, to tell me whether the scat belt where Ida was seated was in a functional working order on April 4 of 2011? A. We have no reason to believe they were not. Obviously we don’t have any photos of them at the time. But the way those seat belts are mounted, it would be very difficult for the shoulder portion to be behind the seat for example. That would be very unlikely. We have no evidence that something else had happened. We do know from ~ we do have testimony from Mr. Da Silva that he actually had checked those belts, as well, routinely. He also drove the cab, And I think Mr. Sanchez indicates that the seat belts were in functional order. And we checked them as well. And we know from Mr. Cheng that he doesn’t remember seeing them one way or the other, He said that he looked at the interior of the cab, but it sounds like it’s more whether it’s clean or not or 3 Case No. CGC-11-515542 DEFENDANTS YELLOW CAB AND TAXI EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFE’S MOTION IN LIMINE NO. 9function belt or not. And he doesn’t recall making any determination about that before getting in the cab. (Deposition of Dr. Shattuck, pg 53:4-25; Exhibit D to the Declaration of C. Weber; emphasized portion is that portion of the response omitted from Plaintiff's MIL). Dr. Shattuck went further, and explained that he tested the retractor of the seatbelt, which operates during any incident to lock the belt in place — preventing an occupant from flying unrestrained in the vehicle as happened with Ms. Fua. His testing of the retractor showed that it was operational and working. (Deposition of Dr. Shattuck, pg 58:7-12; Exhibit E to the Declaration of C. Weber). Dr. Mason, another defense expert also testified that the seatbelt was functioning at the time of the incident: “Q. Do you have a - any opinion as to whether there was a functional working seatbelt where Ida Fua was seated on April 4, 2011? A. I believe the seatbelt was functioning and working. Q. Based on what? A. We removed the coil, the seatbelt retractor — when I saw we, Mark Shattuck did it to be honest, but we agreed to do that on the January 2014 inspection. He remained behind and removed it. 1 inspected it after the case, and it was functioning. After the fact | inspected it in February of 2015. The buckle is there. I believe the latch plate was lost after it was cut and the latch plate was in place, and I believe that if Ms. Ida Fua climbed into the yellow cab and there wasn’t a functioning seatbelt she should have said something and gotten a functional seatbelt or gotten out of the cab and gotten in another one.” (Rough Deposition Transcript of Dr. Mason, pg 27:2-19; Exhibit F hereto). Dr. Mason also testified that he tested the buckle (also called a “receiver” of the seat belt available to Plaintiff. (Rough Deposition Transcript of Dr. Mason, pg 35:21-36:11; Exhibit G to the Declaration of C. Weber). Plaintiff also makes much of the fact that at the time of the inspection in 2014, the clasp that would normally have been attached to Plaintiff*s seatbelt could not be found. From that, Plaintiff apparently concludes that Defendants cannot show there was a clasp at the time of the accident and thus cannot show the seat belt worked. (Plaintiff's MIL, pg 4:27-5:2). This argument is fallacious. As the experts testified, even in accidents where a seat belt was not worn, 4 Case No,:_ CGC-11-515542 DEFENDANTS YELLOW CAB AND TAXI EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 9paramedics sometimes cut the seat belts because they are in the way. Once cut, the clasp (also called a “latch”) can be unattached from the remainder of the belt. While Plaintiff is free to argue that the “missing” clasp is an indication that the clasp was not there at the.time of the accident, there is no basis for such determination as a matter of law. This is particularly true given the testimony by the witnesses — described above - that the seat belt was operational and functional before the accident. For example, if a seatbelt is damaged during an accident, using Plaintiff's argument, a defendant would not be able to prove that it functioned before the accident. Plaintiff provides no case supporting such a proposition. B. Plaintiff's argument that Defendants lost, misplaced or intentionally concealed evidence has no merit. Plaintiff asserts — with no facts cited in support — that the seat belt clasp went missing sometime after the taxi was taken to Yellow Cab’s premises after the accident. Plaintiff's base this assertion on an assumption without any factual support ~ that because Ms, Fua was not seat belted at the time of the accident, the seat belt “would not have been cut at the scene of the collision by any emergency responder.” (Plaintiff's MIL 9, pg 5:8-12). They provide no basis for this assumption, nor any citation to evidence. In fact, as Dr. Mason testified, emergency responders do sometimes cut seat belts in vehicles even though they were not being used. (Rough Deposition of Dr. Mason, pg 24:19-25:9; Exhibit H to the Declaration of C. Weber), While Plaintiff, depending upon the evidence, may be able to argue that the belt was actually cut after the vehicle was taken to Yellow Cab, she provides NO basis for striking the seat belt defense. Plaintiff's assertion — without any factual support — that Defendant somehow intentionally spoliated evidence is also wrong. During Dr. Mason’s deposition, as can be seen from Exhibit H, Plaintiff suggested that Dr. Shattuck had actually cut the seat belt and removed it. At the deposition of Dr. Raphael, the reason for this assertion became apparent ~ Dr. Raphael claimed 5 Case No. CGC-11-515542 DEFENDANTS YELLOW CAB AND TAX] EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 9wn Oo oe aD 10 il 12 13 14 45 16 17 18 19 20 2k 22 23 24 25 26 27 28 that when she inspected the vehicle on January 3, 2014 with the other experts — the seat belt and seat belt retractor had been removed, most likely by Dr. Shattuck, and she thus had been denied the opportunity. to inspect it.. Dr. Raphael supported her testimony that the retractor and belt had been removed by testifying that she was at the inspection for approximately 4 hours and the belt and retractor had clearly been removed before she got there. (Rough Deposition Transcript of Dr. Raphael, pg 6:24-7:5, pg 13:21-14:9, pg 17:8-26; Exhibit I to the Declaration of C. Weber). She then referenced numerous photographs that she said showed definitively that the belt and retractor had been removed before she had the opportunity to inspect them, even suggesting that Dr. Braun’s photographs (Dr, Braun is Plaintiff's Accident Reconstruction expert) would also show the missing parts. When shown Dr. Braun’s photograph, Dr. Raphael immediately had to concede that all her testimony regarding the missing retractor (which contained the belt) was wrong. The retractor (and the belt) was clearly visible in the vehicle at the time of her inspection but she had somehow - despite having been there for 4 hours ~ been unable to find it! (Rough Deposition Transcript of Dr. Raphael, pg 21:15-22:16; Exhibit J to Declaration of C. Weber). C. Plaintiff has no basis for a section 402 hearing. It is a question of fact, for the jury, whether there was a functioning seat belt at the time of the accident. There is sufficient evidence for a jury, discussed above, to determine whether the seat belt was functioning at the time of the accident. Because the trial court’s function is merely to determine whether there is sufficient evidence to permit a jury to decide the question, there is no reason for a section 402 hearing. (People v. Lucas, (1995) 12 Cal. 4" 415), ill. CONCLUSION 6 Case No.:_ CGC-11-515542 DEFENDANTS YELLOW CAB AND TAX] EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO, 9Plaintiffs motion has no basis in fact nor law. Because Defendants have sufficient evidence for a jury to determine that a functional seatbelt was available to Ms. ua at the time of the accident, the motion should be denied in its entirety. Dated: March 9, 2015 CARLSON, CALLADINE & PETERSON LLP ROBERT M. PETERSON COLIN C. MUNRO CHRISTOPHER J. WEBER Attorneys for Defendants TAXI EQUIPMENT LEASING LLC and YELLOW CAB COOPERATIVE, INC. 7 Case No.:_ CGC-11-515542 DEFENDANTS YELLOW CAB AND TAXI EQUIPMENT LEASING’S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 9a PROOE OF SERVICE Ida Cristina Cruz Fua v. Joel Enrique Andino Sanchez, et al. San Francisco Superior Court Case No. CGC-11-515542 Iam 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 March 16, 2015, 1 served the following document: DEFENDANTS TAXI EQUIPMENT LEASING, LLC AND YELLOW CAB COOPERATIVE, INC’S OPPOSITION TO PLAINTIFF’S MOTION JIN LIMINE NO. 9 TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSE OF COMPARATIVE FAULT BASED ON PLAINTIFF’S FAILURE TO USE A SEATBELT IN THE BACK SEAT OF YELLOW CAB # 609, OR IN THE ALTERNATIVE REQUEST FOR 402 HEARING RE SAME 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. Dougias Shureen, Esq. Telephone: (707) 525-5400 MeMillian & 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: gmecormick@burnhambrown.com Oakland, CA 94612 Attorneys for Defendant Alan DaSilva and San Francisco Independent Taxi Assn. Mitchell E. Green, Esq. Telephone: (805) 823-0915 Law Offices of Mitchell E. Green Facsimile: (805) 823-0916 P, O. Box 630550 Email: mitchgreenlaw@aol.com Simi Valley, CA 93063 Attorneys for Plaintiff Alistate Insurance Co. 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 kquipment 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. 1 did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. PROOF OF SERVICEI declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, Executed on March 16, 2015, at San Francisco, California. + Re ¢ SHARIL. HIBEL PROOF OF SERVICE