Hearing: DIEGO CONRADO -V- CLS LANDSCAPING Print

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        Sandra Brislin   Esq    State Baz No    105221                                                                                                               iC T
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        LAW OFFICES OF MUHAR GARBER AV AND DUNCAN                                                                   41AR                                      Q
    2   790 The City Drive Suite 400
        Orange CA 92868                                                            Y
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    3   Telephone   714939 0184 Facsimile 866 547 5409                                              s          i
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        Email Sandra Brislin@LibertyMutual         cam
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    5   Attorney for Defendants CLS LANDSCAPING MANAGEMENT INC and JOSE NAN
        ESPINOZA GONZALEZ
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                                             SUPERIOR COURT OF CALIFORNIA
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                         COUNTY OF SAN BERNARDIN                      SAN BERNARDINO BRANCH
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        DIEGO CONRADO                                                Case No   CNDS 1723453
                                                                     Judge Honorable Brian S McCarville Dept
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                               Plainti f                             S30

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                                                                     DEFENDANTS OPPOSITION TO
                                                                     PLAINTIFF S MOTION IN LIlVIINE NO                                                                          14
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                                                                     FAILURE TO CALL TREATING
        CLS LANDSCAPING MANAGEMENT INC                               PHYSICIANS
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        JOSE NAN ESPINOZA GONZALEZ and

1       DOES 1 through 50 Inclusive


1 7                            Defendants


18      TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN


19              Defendants CLS LANDSCAPING MANAGEMENT INC and JOSE JUAN ESPINOZA


20      GONZALEZ hereinafter               DEFENDANTS        hereby oppose PlaintiffDIEGO CONRADO s

21       hereinafter PlaintifP      Motion in Limine Na 14 to Exclude Evidence andlor Arguments that

22      PlaintiffFailed to Ca11 All Treating Physicians

23                                MEMORANDUM UF POINTS AND AUTHORITIES

24              This matter arises from a motor vehicle accident


25      A       Plaintiffs Have Failed To Provide The Court With Any Factual Basis For This Request

26              A motion in limine     must   be carefully   scrutinized and controlled        by the trial judge                                                 Kelly v

27      New West Federal Savangs 1996 49 Cal App 4th 659 677 A motion in limine must sta te the

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                          DEFENDANTS OPPOSITION TO PLAINTIFF S MOTION IN LIIvIINE NO                                                  14
    1   facival support for its contention Kelty at fi70 If no factual basis is provided the court is forced ta

            rule   in   a vacuvm         and   the caurt and parties are    left      to guess what evidence may be included
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        within the scope of              the ruling     Id Plaintiffis requesting this Court do just that
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    4               Plaintiffs se ks to prevent Defendants fram referencing the absence of certain medical

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        praviders         testimony            Plaintiff fails to specify which doctors will not be called or any factual basis as

        to why the absence ofthis testimony shgulc not be explored The implication beingthat part of the

    7   reason same doctors will not be called is because they might express an unfavorable opinion

                    Plaintiffprovides nc actthority for ti is specific exclusion but rather appeals only to he

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        general pawer af             the court to     exclude evidence
                                                                            Plaintiffbroadly cites to Smith v       avell presumably


        for the     proposition          that improper insinuations    of   fact not in   evidence should   be excluded     Smith v
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        e    vell       1980 1Q0 Cal           App   3d 9 7 957      In Smith the court properly excluded defense caunsel
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l           representation offacts during his opening statement that was totally unsubstantiated by any

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        evidence
                          Id at 958 This circumstances are a far cry from those presented today Plaintiffseeks to

1       prevent even questioning witnesses on the topic of absent m clical providers or making any related

1       azguments The jury may cansider the ability of each party ta pravide evidence here metlical

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        providers         testimony            If a party provided weaker evidence when it eould have pravided stronger

        evidence         the   jury may        distrust the weaker   evidence      CACI    Jury Instruction   203   Plaintiff is
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1       atternpting to limit the Defense s ability to even questian the absenca of this evidence

    g               Absent the factual foundation we really da n t know if the absence of the treating provider s

2a      testimony is truly irrelevant If the absence is related o a bad opinion that pro ider may express on

2       the stand that is highly relevant and should not be excluded under any circumstanees

22                  Lastly the Court s discretion to exclude evidence under Evidence Code 352 is nat so

        s    eeping      as   to   include any     evidence   the opponent    finds inconvenient      Yorse v Sarasy 1997 S3
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24      Cal App 4th 998 1008 Consequently evidenee that paint s a person faithfully is nat af itself
        unfair      under section          352 Peaple v       Iarris 199         60 Cal App 4th 72 7 737 Section 352 also does
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2       not pravide for the exclusion ofevidence merely beeause it is unfavorable to a party Peaple v Ortiz

2           1995 38 Cal App 4th 377 394 Absent highly unusual circumstances evidence that relates to a

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                                    DE    NDANTS C PPOSITIQ          TQ PLAINTIFF S MOTIOlv IIv LIMINE NC           14