Motion-Secondary: IDA CHRISTINA FUA CRUZ VS. JOEL ENRIQUE ANDINO SANCHEZ et al

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TODD P. EMANUEL (SBN 169301)

DEIRDRE O’REILLY-MARBLESTONE (SBN 88008) ELECTRONICALLY
EMANUEL LAW GROUP FILED
702 Marshall St., Ste. 400 ‘Supertor Court of Califomia,
Redwood City, CA 94063 County of San Francisco
Telephone: (650) 369-8900 01/08/2016
Facsimile: _ (650) 369-4228 Clerk of the Court |
Email: todd@teinjurylaw.com Deputy Clerk

dom@ieinjurylaw.com

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

IDA CRISTINA CRUZ FUA, CASE NO.: CGC-11-515542
Plaintiff, PLAINTIFF’S REPLY TO DEFENDANT’S
JOINT OPPOSITION TO MOTION FOR
v. NEW TRIAL

JOEL ENRIQUE ANDINO SANCHEZ, and
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,

Defendants.

To THE COURT, TO DEFENDANTS, AND TO THEIR RESPECTIVE ATTORNEYS:
INTRODUCTION
Defendants’ Joint Opposition to plaintiff Ida Fua’s Motion for New Trial is
misleading and unsupported in several respects. Most importantly, defendants nibble at
the margins of Fua’s motion while ignoring altogether the important distinction between
lost future-earnings and lost earnings-capacity.
ARGUMENT

I. FUA’S MOTION IS DULY SUPPORTED AND SUFFICIENTLY SPECIFIC, AS SHOWN
BY DEFENDANT'S OWN RESPONSE.

Defendants feign ignorance of the matters raised in Fua’s motion for new trial,
claiming, for example, that Fua has not sufficiently cited to the minutes of the Court.
Defendants’ claimed ignorance is disingenuous. As shown by their detailed response to
Fua’s motion, defendants know fully well the basis of Fua’s argument that the jury's

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PLAINTIFF’S REPLY TO DEFENDANT’S JOINT OPP TO MOTION FOR NEW TRIAL ~ CASE No. CGC-11-515542oO ON DO FR WO DY =

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award of damages was inadequate. Indeed, defendants specifically identify the hearings
and testimony that defendants claim are relevant to Fua’s argument. (Defendants’
Opposition to Plaintiffs Motion for New Trial, p. 2, lines 1-7.) Defendants’ procedural
argument is an attempted distraction from the questions of whether the jury's award was
inadequate in light of the evidence presented and whether the Court erred by excluding
other evidence of Fua’s lost earnings-capacity.

Defendants’ reliance on Code of Civil Procedure section 658 is misplaced. More
specifically, they point to the provision in section 658 that a motion for new trial on the
ground of inadequate or excessive damages “must be made on the minutes of the court.”
That is true but out of context and beside the point. Section 658 in its entirety states:

When the application [for new trial] is made for a cause
mentioned in the first, second, third, and fourth subdivisions of
Section 657, it must be made upon affidavits; otherwise it must
be made on the minutes of the court. (Bracketed material
added.)

Thus, for example, a motion for new trial on the ground of newly discovered
evidence (ground number 4) must necessarily be based on matters outside the record,
i.e., not in the court’s minutes, because the newly discovered evidence would not be in
the minutes; if it were, it would not be newly discovered. Conversely, the other grounds of
section 657, including the fifth ground (excessive or inadequate damages) are
necessarily based on what had already occurred at trial and what is thus in the court’s
minutes.

The obvious point of section 658 is to distinguish between these two categories of
grounds for a new trial, as noted by defendants’ own case authority. (Wall Street
Network, Ltd. v. New York Times Co. (2008) 164 Cal. App.4th 1171, 1192 [“Sections 657
and 658 establish seven grounds for a new trial, which fall into two groups.”].) Section
658 says nothing about how particularly and often a party seeking a new trial must cite
specific portions of the record, e.g., the reporter's transcript.

Section 660, which defendants also cite, makes clear that citation of the reporter's
transcript is permissive, not mandatory. Section 660 states in relevant part that, “[W]hen
the motion is made on the minutes, reference may also be had to depositions and
documentary evidence offered at the trial and to the report of the proceedings on the trial
taken by the phonographic reporter, or to any certified transcript of such report... .” The

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word “may” when used in a statute means “permissive.” (Common Cause v. Board of
Supervisors (1989) 49 Cal.3d 432, 443.) Put simply, the motion may refer to a transcript,
but such reference is not mandatory. Indeed, a transcript is not even necessary, as
shown by the provision that the motion may be made on the minutes even if a transcript
has not been prepared. (§ 660.)

Defendants’ citation to Wall Street Network, Ltd. v. New York Times Co.,
164 Cal.App.4th 1171, their sole case-authority, is off the mark. It dealt with a motion for
new trial based on the ground of newly discovered evidence. The moving party argued on
appeal that evidence already in the court's minutes, i.e., witnesses’ testimony, was newly
discovered. Of course, that could not be true because it was already in the record. Wall
Street is inapposite to Fua’s motion in the present case.

Moreover, Fua’s motion makes fully clear the factual basis of her motion and
supporting arguments, as shown by defendants’ detailed opposition to Fua’s motion.

i. WHETHER FUA WOULD HAVE BECOME A PARTNER AT HER FIRM ORA
CORPORATION’S GENERAL COUNSEL IS A RED HERRING.

Defendants contend the Court's rulings that limited evidence of Fua’s lost
earnings-capacity were correct because it was speculative whether she would have
become a partner at her law firm (the Gunderson firm) or a similar elite law-firm or have
become a corporation’s general counsel. (Defendants’ Opposition, section B, pp. 3-4.)
But the question of whether Fua would have become a partner of corporate counsel is a
red herring. Even if it had been shown that Fua would never have become a partner,
such a showing would not establish that she would have ceased to work as a
transactional specialist and that her earnings and earning capacity would have not
continued to increase beyond the level of compensation for a typical fourth-year
associate at an elite law-firm. But as defendants themselves emphasize, that was the
basis of the Court's ruling that limited the testimony of Fua’s economist, Dr. Robert
Johnson. “After argument, the Court ruled that Dr. Johnson would not be allowed to
testify that Plaintiff had the capacity to earn in excess of the fourth year Gunderson salary
scale as reflected in Exhibit 28.” (Defendants’ Opposition to Plaintiffs Motion for New
Trial, p. 4, lines 7-9.)

It defies common sense, though, to assume as defendants persuaded the Court to
do, that the earnings of attorneys, especially those such as Fua with excellent

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PLAINTIFF’S REPLY TO DEFENDANT’S JOINT OPP TO MOTION FOR NEW TRIAL ~ CASE No. CGC-11-515542credentials, never increase beyond those of a fourth-year attorney. Even attorneys
employed by public entities, e.g., the State of California, earn more as they progress in
their careers, even if only by seniority. Indeed, virtually no one works for 30 or more
years, certainly not in the same occupation or profession, at the same salary they earned
during their fourth year of work. By embracing this false notion, the Court artificially
deflated Fua’s future earnings-capacity. Thus, the Court’s ruling prohibited the jury from
hearing a realistic calculation of Fua’s lost earnings-capacity. It thus follows that the jury
relied on defendants’ experts’ flawed and utterly realistic testimony.

Defendants’ reliance on Toscano v. Greene Music (2004) 124 Cal.App.4th 685, is
misplaced. The plaintiff was induced by the defendant to quit plaintiff's job and to begin
work for defendant. After the plaintiff quit his then-present job, defendant withdrew his
offer of employment. Plaintiff sued and obtained judgment on the ground of promissory
estoppel. The court awarded him damages that included the income he would have
earned if he had remained at his former job (the one that he quit) until his retirement. The
Court of Appeal held that, based on the facts of that case, it was speculative whether he
would have remained in that job until his retirement. But there was no issue regarding his
lost earnings-capacity.

That is the distinction that defendants adamantly ignore. Lost earnings are not the
same as lost or impaired earnings-capacity. As one leading treatise explains, “The
significance of the distinction between actual loss of earnings and impairment of earning
capacity is, therefore, that the injured person may recover damages for impairment of
earning capacity without showing that he or she was gainfully employed at the time of
injury.” (Johns, California Damages: Law and Proof (Matthew Bender 2011) § 1.11,

p. 1/40.7.) As the appellate courts have repeatedly clearly explained,

“[One's] earning capacity is not a matter of actual earnings.
The impairment of the power to work is an injury wholly apart
from any pecuniary benefit the exercise of such power may
bring and if the injury has lessened this power, the plaintiff is
entitled to recover.... In short, the test is not what the
plaintiff would have earned, but what he could have
earned.” (Stein, Damages and Recovery—Personal Injury and
Death Actions (1972) § 58, p. 94.) The important distinction
just discussed is particularly applicable when the plaintiff is a
student or an apprentice. (See Stein, supra, § 84, p. 131; and

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Johns, Cal. Damages-Law and Proof (2d ed. 1977) § 1.29, pp.
48-49.)

(Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 656-657, emphasis
added; bracketed material by the court.)

Even if Fua had already ceased working at an elite law firm such as the
Gunderson firm at the time of her injury, she would have been entitled to recover the loss
of her earning capacity as a highly credentialed transactional attorney at an elite firm. The
point was well made more than a century ago by the California Supreme Court. (Storrs v.
Los Angeles Traction Co. (1901) 134 Cal. 91.) The plaintiff was a 75-year-old retiree who
had been injured by the defendant’s negligence. The defendant contended the plaintiff
was not entitled to damages for lost earnings-capacity because he was not working and
had no income. The Supreme Court soundly rejected that argument. (/d., at pp. 93-94.)

The fact that he was not in the receipt of any salary or wages,
but was attending to his own business, does not deprive him of
tight to compensation for the loss of his earning capacity, since
it is what he was capable of earning, rather than what he was
actually earning that was to be considered by the jury.

(/d., at p. 93.)

The Storrs court, supra, 134 Cal. 91, also made the common-sense observation
that “It [a jury] needs no evidence to show that a plaintiff in full health and vigor, who has
lost an arm or a hand by reason of the negligence of the defendant, has had his earning
power greatly impaired . . . .” (/d., at p. 94.) Likewise in the present case, the evidence
that defendants contend was speculative was not even necessary. To paraphrase Storrs,
the jury needed no evidence to show that Fua—a highly-educated professional, i.e., an
attorney doing sophisticated transactional work at an elite Silicon Valley firm—had her
earning power greatly impaired as a result of her traumatic brain-injury caused by
defendants’ negligence. It is specious for defendants to contend her earning capacity was
not impaired. And the jury’s award does not come close to compensating Fua for that
loss.

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PLAINTIFF’S REPLY TO DEFENDANT’S JOINT OPP TO MOTION FOR NEW TRIAL — CASE No. CGC-11-515542co 0 OM NO oO Rh OD Ss

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CONCLUSION

For all the reasons stated above and in Fua’s motion for new trial, the Court

should order a new trial limited to damages unless defendants consent to an addittur of

$4,433,924.

Dated: January 8, 2016

RESPECTFULLY SUBMITTED,
EMANUEL LAW GROUP

TODD P. EMANUEL, ESQ.
Attorneys for Plaintiff IDA FUA

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PLAINTIFF’S REPLY TO DEFENDANT’S JOINT OPP TO MOTION FOR NEW TRIAL — CASE No. CGC-11-515542CASE NAME:  Fua v. Sanchez, et al.

ACTION NO.: San Francisco County Superior Court, Case No. CGC-11-515542
(Consolidated with Case Nos. CGC-12-519794 & CGC-13-529705)

PROOF OF SERVICE

| am employed in the City of Redwood City, County of San Mateo, State of
California. | am over the age of 18 years and not a party to the within action. My
business address is 702 Marshall Street, Suite 400, Redwood City, California 94063.

On the date set forth below, following ordinary business practice, | served a true
copy of the foregoing document(s) described as:

PLAINTIFF’S REPLY TO DEFENDANT’S JOINT OPPOSITION TO MOTION FOR NEW
TRIAL

oO (BY FAX) by transmitting via facsimile the document(s) listed above to the fax
number(s) set forth below, or as stated on the attached service list, on this date.

(BY MAIL) | caused such envelope(s) with postage thereon fully prepaid to be
placed in the United States mail at Redwood City, California.

(BY ELECTRONIC SERVICE) by transmitting via electronic mail and/or via File
and Serve Express the document(s) listed above to the email address(es) set
forth below, or as stated on the attached service list, on this date.

(BY OVERNIGHT DELIVERY) | caused such envelope(s) to be delivered to an
overnight delivery carrier with delivery fees provided for, addressed to the
person(s) on whom it is to be served.

(1 (BY PERSONAL SERVICE) | caused such envelope(s) to be delivered by hand
to the addressee(s).

oO

SEE ATTACHED SERVICE LIST

fl (State) | declare under penalty of perjury under the laws of the State of
California that the above is true and correct.

Executed on January 8, 2016 at Redwood City, California.

Sp

CC Edwina Feguis

PROOF OF SERVICE - CASE NO. CGC-11-515542oo ON OO FF WN =

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Colin C. Munro, Esq.
Christopher J. Weber

CARLSON CALLADINE & PETERSON, LLP.

353 Sacramento St., 16th Floor
San Francisco, CA 94111
Telephone: (415) 391.3911
Facsimile: (415) 391.3898
Email: cmunro@ccplaw.com
cweber@ccplaw.com

Robert S. Aaron

AARON & WILSON, LLP.

150 Post St., Suite 400

San Francisco, CA 94108
Telephone: (415) 438.7801
Facsimile: (415) 438.7808
Email: rsaaron@aaron-wilson.com

tewilson@aaron-wilson.com

D. Douglas Shureen
MCMILLAN & SHUREEN, LLP.
50 Santa Rosa Ave., Suite 200
Santa Rosa, CA 95404
Telephone: (707) 525.5400
Facsimile: (707) 576.7955

Email: doug.shureen@memillanshureen.com

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Attorneys for Defendants
YELLOW CAB COOPERATIVE,
INC., TAXI EQUIPMENT,
LEASING, LLC.,

Co-Counsel for Defendants
YELLOW CAB COOPERATIVE,
INC.,& TAXI EQUIPMENT,
LEASING, LLC., TAXI PROPERTY
COMPANY, INC.,

Attorneys for Defendant
JOEL ENRIQUE ANDINO
SANCHEZ

PROOF OF SERVICE - CASE NO. CGC-11-515542