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Jason A. Helsel, #214992
FOWLER HELSEL | VOGT
1705 L Street
Fresno, California
Tel: (559) 283
Fax: (559) 283
Attorneys for Plaintiff, FLORA OROSCO
SUPERIOR COURT OF CALIFORNIA
COUNTY OF FRESNO
FLORA OROSCO, an individual, Case No. 18CECG01791
Plaintiff, PLAINTIFF’S MOTION FOR PARTIAL
DIRECTED VERDICT AS TO:
DEFENDANT’S
CITY OF SANGER, a government entity; and LIABILITY/NEGLIGENCE
DOES 1 10, inclusive CAUSATION AS TO DEFENDANT’S
CONDUCT
Defendants.
TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF
RECORD:
Plaintiff hereby moves for a directed verdict in favor of Plaintiff as to:
Defendant’s liability/negligence for the Motor Vehicle Collision on December 2
; and
Defendant’s conduct being a substantial factor in causing harm to Plaintiff, Flora
Orosco
F|H|V Plaintiff’s Motion for Partial Directed Verdict
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MEMORANDUM OF POINTS AND AUTHORITIES
THE LAW REGARDING DIRECTED VERDICTS
"Unless the court specified an earlier time . . . after all parties have completed the
presentation of all of their evidence in a trial by jury, any party may, without waiving his or her
right to trial by jury in the event the motion is not granted, move for an order directing entry of a
verdict in its favor." (Code Civ. Proc., §630(a). Where several claims or defenses are asserted,
the court may direct a verdict on those claims or defenses that are not supported by the evidence
when all parties rest See, Dumin v. Owens Corning Fiberglas Corp (1994) 28 Cal.App.4th 650,
The court may direct a verdict in favor of plaintiff on the liability issues while allowing
the jury to determine the amount of damages to be awarded Newing v. Cheatham (1975) 15
Cal.3d 351, 364 directed verdict for plaintiff on liability proper where res ipsa loquitur
created inference of liability and defendant failed to rebut or show affirmative defense Sanchez
v. Bay General Hosp (1981) 116 Cal.App.3d 776, 793 same
A motion for directed verdict at the close of evidence is governed by standards similar to
those governing a motion for nonsuit: "A directed verdict may be granted when, disregarding
conflicting evidence, and indulging every legitimate inference which may be drawn from the
evidence in favor of the party against whom the verdict is directed . . . there is no evidence of
sufficient substantiality to support a verdict in favor of such party." Newing, supra, 15 Cal.3d at
). Stated differently, a directed verdict is proper only when "no other reasonable conclusion
is legally deducible from the evidence, and . . . any other holding would be so lacking in
evidentiary support that a reviewing court would be impelled to reverse it on appeal, or the trial
court to set it aside as a matter of law." Estate of Lances (1932) 216 Cal. 397, 400
The trial court, on a motion for directed verdict, cannot weigh the evidence or judge the
credibility of witnesses. It may consider only the opposing party's evidence; all evidence in
conflict therewith must be disregarded Estate of Flood (1933) 217 Cal. 763, 768 769; Hilliard
v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 395. Only testimony favorable to the opposing
F|H|V Plaintiff’s Motion for Partial Directed Verdict
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party's case is considered on a motion for directed verdict. Impeachment or other facts brought
out on cross examination of the opposing party's witnesses cannot be considered Walker v.
Northern San Diego Co. Hosp. Dist. (1982) 135 Cal.App.3d 896, 899
The trial judge's function in ruling on a motion for directed verdict at the close of evidence
is analogous to that of a reviewing court in determining on appeal whether there is evidence in
the record of sufficient substance to support the verdict or judgment. Dailey v. Los Angeles
Unified School Dist. (1970) 2 Cal.3d 741, 745; Hilliard, supra, 148 Cal.App.3d at 395; Howard
v. Owens Corning (1999) 72 Cal.App.4th 621, 632.
To avoid a directed verdict, the opposing party's evidence must be more than a mere
"scintilla." Newing, supra, 15 Cal.3d at 358. To constitute "substantial" evidence, any inference
supporting the opposing party's case must be reasonable. It need not be the only inference, but it
must at least be one that can logically be drawn from the facts proved. at p. 365. In Newing
Defendant's decedent was at controls of crashed airplane. Plaintiff's evidence created inference
of decedent's negligence. Defendant argued the crash "could have" resulted from other causes:
"Mere speculation of this sort is insufficient to discharge defendant's burden of explanation."
A DIRECTED VERDICT SHOULD BE ENTERED ON THE ISSUE OF
DEFENDANT’S LIABILITY/NEGLIGENCE
“Whether or not defendant was guilty of negligence [citations omitted] …is ordinarily a
question of mixed fact and law and may be determined as a matter of law only if reasonable men
following the law can draw but one conclusion from the evidence presented. Gray v.
Brinkerhoff (1953) 41 Cal.2d 180, 183.
California Vehicle Code section 25301(b) provides, “when a utility or public utility
vehicle is parked, stopped, or standing at the site of work as described in section 22512, warning
devices shall be displayed as follows: During darkness the warning devices shall consist of either:
one or more flashing amber warning lights on the vehicle giving warning to approaching traffic
from each direction. A warning light flare, fusee, or reflector on the highway not more than 50
F|H|V Plaintiff’s Motion for Partial Directed Verdict
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feet in advance of the vehicle and not more than 50 feet to the rear thereof, except that in zones
where the speed limit is in excess of 25 miles per hour the 50 foot distance may be increased up
to 500 feet from the vehicle where circumstances may warrant.” (Ca. Veh. Code, §25301(b).).
“Although compliance with the law does not prove the absence of negligence, violation
of the law does raise a presumption that the violator was negligent. This is called negligence per
se.
The presumption of negligence arises if (1) the defendant violated a statute; (2) the
iolation proximately caused the plaintiff’s injury; (3) the injury resulted from the kind of
occurrence the statute was designed to prevent; and (4) the plaintiff was one of the class of
persons the statute was intended to protect. The first two elements are normally questions for the
trier of fact and the last two are determined by the trial court as a matter of law. That is, the trial
court decides whether a statute or regulation defines the standard of care in a particular case.”
Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526
internal citations omitted; see also Cal. Law Revision Com. to Evid. Code, §669.)
“Under the doctrine of negligence per se, the plaintiff ‘borrows’ statutes to prove duty of
care and standard of care. [Citation.] The plaintiff still has the burden of proving causation.”
David v. Hernandez (2014) 226 Cal.App.4th578, 584.) “Where a statute establishes a party’s
duty, ‘“proof of the [party’s] violation of a statutory standard of conduct raises a presumption of
negligence that may be rebutted only by evidence establishing a justification or excuse for the
statutory violation.” This rule, generally known as the doctrine of negligence per se, means that
where the court has adopted the conduct prescribed by statute as the standard of care for a
reasonable person, a violation of the statute is presumed to be negligence.” (Spriesterbach v.
Holland (2013) 215 Cal.App.4th 255, 263, internal citation omitted.)
Here, Officer Calederon took the stand and testified that, as the investigating officer of
the collision, he determined that Defendant violated California Vehicle Code section 25301(b)
based on his findings that Defendant’s Vactor Truck did not have the required warning
signs/devices at the time of the collision; namely, the beacon light and/or cones in front of and
F|H|V Plaintiff’s Motion for Partial Directed Verdict
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behind the Vactor Truck. Officer Silva was first on the scene and also testified that the beacon
light on the Vactor Truck was inoperable prior to the collision and there were no cones in the
road. Defendant offered no evidence disputing either Officer Calderon’s or Officer Silva’s
findings. In fact, Defendant admitted that, at the time of the collision, Defendant’s Vactor Truck
did not have the proper warning lights, flares, fuses, or reflector on the highway as required by
California Vehicle Code, section 25301(b). There has been no evidence that such a violation
was lawfully excused or that Defendant could not have complied with the law.
Accordingly, the violation of California Vehicle Code section 25301(b) by parking a
utility vehicle in the middle of a road without any such warnings as prescribed above is
negligence per se (see Hert v. Firestone Tire & Rubber Co. (1935) 4 Cal.App.2d 598, 599 which
establishes the first element of CACI No. 400, Negligence Essential Factual Elements.
In sum, the witnesses at trial have established the following uncontradicted testimony:
Defendant owned the Ford 8000 (hereinafter the Vactor Truck)
On December 2, 2017, the Vactor Truck was pa ked in the middle of Almond Ave.
with most of the vehicle in the eastbound lane
At the time of the collision, the Vactor Truck did not have an overhead beacon light
on at the time of the collision
At the time of the collision, the Vactor Truck did not have a warning light flare, fuse,
or reflector on the highway not more than 50 feet in advance of the vehicle
Defendant did not have any cones placed either in front of or behind the Vactor Truck
at the time of the collision.
Plaintiff’s vehicle collided into the front of Defendant’s Vactor Truck;
Defendant was found to be in violation of CVC 25301(b); and
Plaintiff was injured after colliding with the Vactor Truck
Defendant’s admission comes by way of its response to Plaintiff’s Request for Admission No. 9, read in open
Court and marked as Trial Exhibit 16.
F|H|V Plaintiff’s Motion for Partial Directed Verdict
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Based on the forgoing uncontradicted testimony at trial, only if reasonable person
following the law can draw but one conclusion from the evidence presented, which is that the
Defendant was at least partially liable for the collision. The percentage of Defendant’s
negligence/liability is to be assessed in the comparative fault section the Special Verdict form.
However, Defendant cannot and should not be able to argue that it is not negligent.
Accordingly, respectfully requests that this Motion for Partial Directed Verdict be granted
and that the court should answer the first question on the Special Verdict, which states:
“1. Was THE CITY OF SANGER negligent?
___ Yes _______No”
A DIRECTED VERDICT SHOULD BE ENTERED ON THE ISSUE OF
DEFENDANT’S CONDUCT BEING A SUBSTANTIAL FACTOR IN CAUSING
PLAINTIFF’S HARM
As the trial testimony of Peter Simonian, M.D. and Loc Mai, D.C. conclusively
demonstrates, the automobile accident of December 2, 201 , was a substantial factor in causin
harm to Plaintiff, Flora Orosco
For purposes of causation, if “a defendant's negligence is a concurring cause of an injury,
the law regards it as a legal cause of the injury, regardless of the extent to which it contributes to
the injury.” Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1317 1318;
italics and footnote omitted Raven H. v. Gamette (2007) 157 Cal. App. 4th 1017, 1025.
Under California Civil Jury Instruction 430, “A substantial factor in causing harm is a
factor that a reasonable person would consider to have contributed to the harm. It must be more
than a remote or trivial factor. It does not have to be the only cause of the harm. [Conduct is not
a substantial factor in causing harm if the same harm would have occurred without that conduct.]”
F|H|V Plaintiff’s Motion for Partial Directed Verdict
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The California Supreme Court in Rutherford v. Owens Illinois (1997) 16 Cal. 4th 953,
969 noted that:
This court has suggested that a force which plays only an
“infinitesimal” or “theoretical” part in bringing about injury,
damage, or loss is not a substantial factor. (citation) Undue emphasis
should not be placed on the term “substantial.” For example, the
substantial factor standard, formulated to aid plaintiffs as a broader
rule of causality than the “but for" test, has been invoked by
defendants whose conduct is clearly a "but for" cause of plaintiff's
injury but is nevertheless urged as an insubstantial contribution to the
injury. (citation) Misused in this way, the substantial factor test
"undermines the principles of comparative negligence, under which
a party is responsible for his or her share of negligence and the harm
caused thereby." (citation)
The California Supreme Court in Mitchell v. Gonzales 991) 54 Cal. 3d 1041, 1053
illustrated what a remote, trivial, or theoretical factor was and such an argument would apply
to the facts of this case:
Not only does the substantial factor instruction assist in the resolution
of the problem of independent causes, as noted above, but "[i]t aids
in the disposition . . . of two other types of situations which have
proved troublesome. One is that where a similar, but not identical
result would have followed without the defendant's act; the other
where one defendant has made a clearly proved but quite
insignificant contribution to the result, as where he throws a lighted
match into a forest fire.
Here, it is beyond dispute that the testimony of the only medical expert Dr. Simonian
and Loc Mai, D.C. demonstrate that the collision of December 2, 201 (Please see above in
Section II Re: Negligence), was a substantial factor in causing harm to Flora Orosco.
During direct examination, Dr. Loc Mai unequivocally stated that the automobile accident
caused harm to Flora Orosco:
And based on your treatment and based on your experiences as a chiropractor, do
you believe that the injuries she sustained and suffered were the result of the car
collision?
A: Yes.
So, to a reasonable degree of medical probability, is it safe to say that her injuries
were caused by this motor vehicle collision?
F|H|V Plaintiff’s Motion for Partial Directed Verdict
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Yes.
Dr. Simonian echoed Dr. Mai’s statements as to the causation of the injury with a specific
focus on Ms. Orosco’s rotator cuff tear in her right shoulder in his trial testimony
And given the nature of what you know about the accident, this is the type of
injury, in your experience, that can occur from a traumatic or a motor vehicle
accident?
t could...So, to me, based on her subjective history, the causation is the accident.
If it were as I described it, being no subjective complaints, had the accident, and
then an injury such as what [Flora Orosco] currently has, you could relate it to the
motor vehicle accident?
Yes.
Defendant did not call medical experts or produce any medical records to dispute the
credible causation testimony provided by both Dr. Simonian and Dr. Mai. Accordingly, itis
without dispute that Defendant (City of Sanger) is responsible for the harm caused to Flora
Orosco
Defendant is free to introduce evidence and argument on how much harm caused
Plaintiff in this accident, or apportionment of harm to new injury from the accident and an old
injury from the past, but it would be against the law to allow the jury to find that Defendant’s
negligence was not a substantial factor in causing harm to Plaintiff
Lastly, “disregarding conflicting evidence, and indulging every legitimate inference
which may be drawn from the evidence in favor of the party against whom the verdict is directed
. . . there is no evidence of sufficient substantiality to support a verdict in favor of” Defendant on
the issue of whether or not Defendants’ violation of the law was a substantial factor in causing
Plaintiff’s harm, as a matter of law.
F|H|V Plaintiff’s Motion for Partial Directed Verdict
LAW
An Association of Trial
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In order to preserve scarce judicial resources and avoid a potential re-trial of this case,
and based upon the law and evidence/testimony cited herein Plaintiff respectfully requests that
this Motion for Partial Directed Verdict be granted and that the court order the removal of the
second question on the Special Verdict, which states:
“2. Was THE CITY OF SANGER’S negligence a substantial factor in causing harm
to FLORA OROSCO?
___ Yes _______No”
IV. CONCLUSION
Plaintiff hereby respectfully requests that the Court enter directed verdicts on the issues
of Negligence and Causation.
Dated: April 29, 2019 FOWLER | HELSEL | VOGT
________________________________
Mark A. Vogt, Esq.
Attorneys for Plaintiff, FLORA OROSCO
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F|H|V Plaintiff’s Motion for Partial Directed Verdict
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PROOF OF SERVICE
I am a citizen of the United States and a resident of the aforesaid county; I am over the
age of 18 years old and not a party to the within entitled action; my business address is 1705 L
Street, Fresno, California 93721.
On the date of execution hereof, I served the foregoing document(s) described as
PLAINTIFF’S MOTION FOR PARTIAL DIRECTED VERDICT by placing a true and
correct copy thereof enclosed in a sealed envelope and address as follows:
Gregory L. Myers, Esq.
LAW OFFICES OF GREGORY L. MYERS
1500 West Shaw Avenue, Suite 204
Fresno, California 93711
Phone: 559-221-5256
Attorney for Defendant(s),
CITY OF SANGER
_____/ (BY FACSIMILE) In addition to service by mail set forth above, the person(s) by whose
name an asterisk is affixed was also forwarded a copy of said document via facsimile to the
above-reference facsimile telephone number(s).
/( BY MAIL) by placing the sealed envelope with the postage thereon fully prepaid for
collection and mailing at the address shown above. I am readily familiar with this firm’s practice
of collection and processing correspondence for mailing. It is deposited with the United States
Postal Service on that same day in the ordinary course of business.
_____/ (BY OVERNIGHT MAIL SERVICE) by placing the sealed envelope for collection
following our ordinary business practice for collecting and processing correspondence with
[FED EX] for overnight delivery.
___X__/ (BY PERSONAL SERVICE) I caused said envelope to be delivered by hand in
a manner provided by law to the addressee, clerk or other person who is apparently in charge
thereof and at least 18 years of age whom I informed of the contents.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on April ___, 29 2019, at Fresno, California.
______________________________
MARK A. VOGT
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F|H|V Plaintiff’s Motion for Partial Directed Verdict
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