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1 ARTHUR J. CASEY (SBN 123273)
JOHN R. WATERMAN (SBN 215378)
2 FORD, WALKER, HAGGERTY & BEHAR, LLP 8/4/2023
16450 Los Gatos Blvd., Suite 110
3 Los Gatos, CA 95032
Tel: (408) 660-3102
4 Fax: (408) 660-3105
Emails: acasey@fwhb.com
5 jwaterman@fwhb.com
6 Attorneys for Defendant,
SALLY EVANS
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
10
11 CHRISTOPHER KIDWELL, Case No. 20CV03255
12 Plaintiff,
OPPOSITION TO PLAINTIFF’S
13 v. MOTION IN LIMINE NO. 3
14 SALLY EVANS, and DOES 1 through 20,
inclusive. Trial: August 21, 2023
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Defendants.
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18 DEFENDANT SALLY EVANS (“Defendant”) hereby opposes PLAINTIFF
19 CHRISTOPHER KIDWELL’s (“Plaintiff”) Motion In Limine # 3 for an Order excluding any
20 evidence or reference to Plaintiff’s numerous motor vehicle accidents that occurred approximately
21 10 years ago, 2015, 2017 or 2018.
22 I. INTRODUCTION
23 In one sweeping motion in limine, Plaintiff seeks to exclude all three of Plaintiff's prior
24 vehicle accidents making only broad, unsupported statements that all prior accidents and injuries
25 related thereto are irrelevant to injuries at issue in this case. Plaintiff's motion should be denied
26 because 1) Plaintiff's motion is an attempt to circumvent the court-designated mechanism for the
27 parties to meet and confer regarding the admissibility of the prior accidents by failing to serve
28 Defendant a proposed motion in limine at least 42 days before the pre-trial conference scheduled
1
OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 3 Case No. 20-CIV-03255
1 to be held on August 9, 2023, which prevented the parties to meet and confer regarding said
2 motion. Thus, Defendant is prejudiced by being denied the necessary time to prepare an
3 opposition to Plaintiff's motion in limine.
4 Plaintiff moves to exclude any reference to "unrelated injuries and claims in the past" and
5 seeks to deny the finder of fact of relevant evidence. Much of the motion in limine relies on
6 conclusory statements rather than actual evidence.
7 II. LEGAL ARGUMENT
8 Prejudice to the Defense for failing to serve a proposed motion in limine.
9 The Court should deny this motion because it is improper. By the pre-trial order dated
10 August 11, 2022, the Court provided a mechanism for the parties to serve a proposed motion in
11 limine 42 days prior to the pre-trial conference, now scheduled for August 9, 2023. Plaintiff failed
12 to serve this proposed motion in limine thus prejudicing Defendant from a proper meet and confer
13 and the ability to properly raise any objections.
14 Plaintiff's prior injuries are relevant to the injuries in this case.
15 Evidence is relevant if it has a "tendency in reason to prove or disprove any disputed fact
16 of consequence to the determination of the action..." Cal. Evid. Code § 210; People v. Nelson
17 (2008) 43 Cal.4th 1242, 1266; Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, 148
18 (July 8, 2013). Plaintiff's argue that his prior accidents 1) a motorcycle accident where he injured
19 his leg and made a claim that settled; 2) any evidence of, or reference to Plaintiff's 2015 car
20 accident in which he struck the front of a truck; and 3) any evidence of, or reference to Plaintiff's
21 2017 or 2018 car accident in which he rear-ended another vehicle and while he is concurrently
22 treating for injuries similar to those alleged in this action.
23 Evidence Code Section 352 "speaks in terms of undue prejudice. Unless the dangers of
24 undue prejudice, confusion, or time consumption 'substantially outweigh' the probative value of
25 relevant evidence, a section 352 objection should fail." People v. Cudjo (1993) 6 Cal.4th 585,
26 609); People v. Yu (1983) 143 Cal.App.3d 358, 377 (when applying Section 352, "prejudicial" is
27 not synonymous with "damaging.").
28
2
OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 3 Case No. 20-CIV-03255
1 Plaintiff's prior medical history indicate a complaint of low back pain contemporaneously
2 with the 2017/2018 accidents that is clearly relevant to the matters at issue in this case. If
3 Defendant is precluded from references Plaintiff's prior issues of his low back pain
4 contemporaneous or post motor vehicle accidents, the defense will be prejudiced because that is
5 primarily what is at issue in this case.
6 III. CONCLUSION
7 For the foregoing reasons, Defendant respectfully requests that the Court deny Plaintiff’s
8 improper Motion in Limine for Orders excluding evidence of prior injuries related to prior
9 accidents.
10
11 Respectfully submitted,
12 Dated: August 4, 2023 FORD, WALKER, HAGGERTY & BEHAR, LLP
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By:
15 ARTHUR J. CASEY
JOHN R. WATERMAN
16 Attorneys for Defendant
17 SALLY EVANS
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OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 3 Case No. 20-CIV-03255
1 PROOF OF SERVICE
Kidwell v. Evans
2 San Mateo County Case No.: 20-CIV-03255
3
I, Carmen A. Keller, declare:
4
I am over the age of eighteen (18) years and not a party to the within entitled action. I am
5 employed by Ford, Walker, Haggerty & Behar, LLP, 16450 Los Gatos Blvd., Suite 110, Los Gatos,
CA 95032. I am readily familiar with the Firm’s practice for collection and processing of documents
6 for delivery by way of the service indicated below.
7 On August 4, 2023, I served the following document:
8 OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 3
9 on the interested party(ies) in this action as follows:
10 John J. Roach, Esq. Attorney for Plaintiff
LAW OFFICES OF JOHN J. ROACH CHRISTOPHER KIDWELL
11
1388 Sutter Street, Ste. 815
12 San Francisco, CA 94109
EMAIL: john@representmyinjury.com
13
14
BY MAIL: I am readily familiar with the firm's practice of collecting and processing of
15 documents and correspondence for mailing with the United States Postal Service.
Under that practice, on the above date the envelope was sealed and placed for collection
16 and mailing following the ordinary business practices of our office. This results in the
envelope being delivered to the United States Postal Service in Los Gatos, California,
17
that same day, with postage thereon fully prepaid.
18 X ONLY BY ELECTRONIC TRANSMISSION: Only by e-mailing the document(s) to
the persons at the e-mail address(es). Pursuant to California Code of Civil Procedure
19
§1010.6, this office will use electronic mail for service purposes.
20
I declare under penalty of perjury under the laws of the State of California that the foregoing is
21 true and correct.
22 Executed on August 4, 2023, at Los Gatos, California.
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25 Carmen A. Keller
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28
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OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 3 Case No. 20-CIV-03255
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1 ARTHUR J. CASEY (SBN 123273) JOHN R. WATERMAN (SBN 215378) 2 FORD, WALKER, HAGGERTY & BEHAR, LLP 8/4/2023 16450 Los Gatos Blvd., Suite 110 3 Los Gatos, CA 95032 Tel: (408) 660-3102 4 Fax: (408) 660-3105 Emails: acasey@fwhb.com 5 jwaterman@fwhb.com 6 Attorneys for Defendant, SALLY EVANS 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 11 CHRISTOPHER KIDWELL, Case No. 20CV03255 12 Plaintiff, OPPOSITION TO PLAINTIFF’S 13 v. MOTION IN LIMINE NO. 3 14 SALLY EVANS, and DOES 1 through 20, inclusive. Trial: August 21, 2023 15 Defendants. 16 17 18 DEFENDANT SALLY EVANS (“Defendant”) hereby opposes PLAINTIFF 19 CHRISTOPHER KIDWELL’s (“Plaintiff”) Motion In Limine # 3 for an Order excluding any 20 evidence or reference to Plaintiff’s numerous motor vehicle accidents that occurred approximately 21 10 years ago, 2015, 2017 or 2018. 22 I. INTRODUCTION 23 In one sweeping motion in limine, Plaintiff seeks to exclude all three of Plaintiff's prior 24 vehicle accidents making only broad, unsupported statements that all prior accidents and injuries 25 related thereto are irrelevant to injuries at issue in this case. Plaintiff's motion should be denied 26 because 1) Plaintiff's motion is an attempt to circumvent the court-designated mechanism for the 27 parties to meet and confer regarding the admissibility of the prior accidents by failing to serve 28 Defendant a proposed motion in limine at least 42 days before the pre-trial conference scheduled 1 OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 3 Case No. 20-CIV-03255 1 to be held on August 9, 2023, which prevented the parties to meet and confer regarding said 2 motion. Thus, Defendant is prejudiced by being denied the necessary time to prepare an 3 opposition to Plaintiff's motion in limine. 4 Plaintiff moves to exclude any reference to "unrelated injuries and claims in the past" and 5 seeks to deny the finder of fact of relevant evidence. Much of the motion in limine relies on 6 conclusory statements rather than actual evidence. 7 II. LEGAL ARGUMENT 8 Prejudice to the Defense for failing to serve a proposed motion in limine. 9 The Court should deny this motion because it is improper. By the pre-trial order dated 10 August 11, 2022, the Court provided a mechanism for the parties to serve a proposed motion in 11 limine 42 days prior to the pre-trial conference, now scheduled for August 9, 2023. Plaintiff failed 12 to serve this proposed motion in limine thus prejudicing Defendant from a proper meet and confer 13 and the ability to properly raise any objections. 14 Plaintiff's prior injuries are relevant to the injuries in this case. 15 Evidence is relevant if it has a "tendency in reason to prove or disprove any disputed fact 16 of consequence to the determination of the action..." Cal. Evid. Code § 210; People v. Nelson 17 (2008) 43 Cal.4th 1242, 1266; Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, 148 18 (July 8, 2013). Plaintiff's argue that his prior accidents 1) a motorcycle accident where he injured 19 his leg and made a claim that settled; 2) any evidence of, or reference to Plaintiff's 2015 car 20 accident in which he struck the front of a truck; and 3) any evidence of, or reference to Plaintiff's 21 2017 or 2018 car accident in which he rear-ended another vehicle and while he is concurrently 22 treating for injuries similar to those alleged in this action. 23 Evidence Code Section 352 "speaks in terms of undue prejudice. Unless the dangers of 24 undue prejudice, confusion, or time consumption 'substantially outweigh' the probative value of 25 relevant evidence, a section 352 objection should fail." People v. Cudjo (1993) 6 Cal.4th 585, 26 609); People v. Yu (1983) 143 Cal.App.3d 358, 377 (when applying Section 352, "prejudicial" is 27 not synonymous with "damaging."). 28 2 OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 3 Case No. 20-CIV-03255 1 Plaintiff's prior medical history indicate a complaint of low back pain contemporaneously 2 with the 2017/2018 accidents that is clearly relevant to the matters at issue in this case. If 3 Defendant is precluded from references Plaintiff's prior issues of his low back pain 4 contemporaneous or post motor vehicle accidents, the defense will be prejudiced because that is 5 primarily what is at issue in this case. 6 III. CONCLUSION 7 For the foregoing reasons, Defendant respectfully requests that the Court deny Plaintiff’s 8 improper Motion in Limine for Orders excluding evidence of prior injuries related to prior 9 accidents. 10 11 Respectfully submitted, 12 Dated: August 4, 2023 FORD, WALKER, HAGGERTY & BEHAR, LLP 13 14 By: 15 ARTHUR J. CASEY JOHN R. WATERMAN 16 Attorneys for Defendant 17 SALLY EVANS 18 19 20 21 22 23 24 25 26 27 28 3 OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 3 Case No. 20-CIV-03255 1 PROOF OF SERVICE Kidwell v. Evans 2 San Mateo County Case No.: 20-CIV-03255 3 I, Carmen A. Keller, declare: 4 I am over the age of eighteen (18) years and not a party to the within entitled action. I am 5 employed by Ford, Walker, Haggerty & Behar, LLP, 16450 Los Gatos Blvd., Suite 110, Los Gatos, CA 95032. I am readily familiar with the Firm’s practice for collection and processing of documents 6 for delivery by way of the service indicated below. 7 On August 4, 2023, I served the following document: 8 OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 3 9 on the interested party(ies) in this action as follows: 10 John J. Roach, Esq. Attorney for Plaintiff LAW OFFICES OF JOHN J. ROACH CHRISTOPHER KIDWELL 11 1388 Sutter Street, Ste. 815 12 San Francisco, CA 94109 EMAIL: john@representmyinjury.com 13 14 BY MAIL: I am readily familiar with the firm's practice of collecting and processing of 15 documents and correspondence for mailing with the United States Postal Service. Under that practice, on the above date the envelope was sealed and placed for collection 16 and mailing following the ordinary business practices of our office. This results in the envelope being delivered to the United States Postal Service in Los Gatos, California, 17 that same day, with postage thereon fully prepaid. 18 X ONLY BY ELECTRONIC TRANSMISSION: Only by e-mailing the document(s) to the persons at the e-mail address(es). Pursuant to California Code of Civil Procedure 19 §1010.6, this office will use electronic mail for service purposes. 20 I declare under penalty of perjury under the laws of the State of California that the foregoing is 21 true and correct. 22 Executed on August 4, 2023, at Los Gatos, California. 23 24 25 Carmen A. Keller 26 27 28 4 OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 3 Case No. 20-CIV-03255