Preview
1 DAY LAW OFFICES
2
Niontie S.
Attorneys
Casa
Day,
at Law
¹073327
Palermo Circle
PKLE9
SAN V)ATEQ lt GUNS
1235
3 Henderson, Nevada 89011
'I"el'208) 280-3766 OCT I9 015
4 Email. msdayesq@aol.corn
Attorney for Plaintiff George Mardikian lerkof the pano C rt
5
EPUTY CLERK
SUPERIOR COURT OF THE STATE OF CALIFORNI
COUNTY OF SAN MATEO
10
GEORGE MARDIKIAN, )
11 ) CASE NO. CIV 517132
Plaintiff. ) MOTION TO PRECLUDE EVIDENCE OF
12 ) OR ARGUMENTS OF
vs. ) MISREPRESENTATION OR
13 ) CONCEALMENT IN ADDING VEHICLE
vs. ) TO THE POLICY
14 WAWANESA GENERAL )
INSURANCE COMPANY, a ) (MOTION IN LIMINENO 3)
15 corporation, and DOES 1 through 50, ) Date: November 12, 2013
inclusive, ) Time: 2.00 p.m
16 ) Dept.: TO BE ASSIGNED
Defendants. ) (Unlimited Jurisdiction)
17 ) Filed October 3, 2012
TRIAL DATE: November 12, 2013
]8
MOTION IN LIMINENO. 3. Motion to exclude any reference to or evidence of any
1L)
kmd that the plaintiffmade any material misrepresentations and/or concealment at the time
20
he added the subject vehicle to the policy on February 22, 2012.
21
ARGUMENTS
22
Plaintiff requests the Court to issue an order that the defendant's counsel may not
23
refer to or attempt to introduce at trial or before the jury any evidence or testimony that the
plaintiffmade any material misrepresentation of fact or concealed any material fact when
25
notifying the defendant that he was adding the subject vehicle to the pohcy and deleting a
26
Camaro. (The Camaro was not operational and vt, assold for parts)
27
There is no question that on February 22, 2012, plaintiffgave the defendant notice that
i%1OTIOiV IN LIMINF.NO
."i
1 he was adding the subject vehicle to the pohcy pursuant to the terms of the policy No claims
2 were made for damages at such time and, in fact, plaintiffdid not know whether any claims
3 for damages would be made under the policy. The sole purpose of the notice to exercise
4 the contractual right to coverage under the provision of the policy, and other than notice,
5 there was no other requirement for the plaintiffto provide additional mformation .
6 lt is furthermore undisputed that the plainti ffhad "NO PERSONAL KNOWLEDGE"
7 of the condition of the vehicle when purchased, although the plaintiff did know that parts
8 which had been re-chromed was not installed on the vehicle. I-Iowever, there is no
9 "exclusion" for coverage for any vehicle dependant upon whether it at the time had all parts
10 installed, or even exclusion any vehicle with rust, dents, or even the mileage of the "newly
11 acquired" vehicle (See Policy and Exclusions)
]2 Important also is that fact that the plaintiffhad no "personal knowledge" relating to
13 the vehicle as he explained he was purchasing the vehicle. He had never seen the vehicle.
14 Cali fornia Insurance Code Section 357(Information other than personal knowledge)
]5 specifically excludes Wawanesa's allegation that plaintiff can be charged with any
16 misrepresentation and/or concealment in any statement unless he had personal knowledge
17 of the fact so stated. The statute provides
18 "When an insured has no personal knowledge of a fact, he may nevertheless repeat
19 information which he has upon the subject, and which he believes to be true, with the
20 explanation that he does so on the information of others, or he may submit the
2] information, in its whole extent, to the insurer. In neither case is he responsible for
22 its truth, unless it proceeds from an agent of the insured, whose duty it is to give
23 the information.
(Emphases added)
25 It not surprising from Wawanesa's deceptive claim practices that Wawanesa and its
26 claim adjustors/purported independent outside counsel v "ould ignore the Cahfornia law, and
27 in this case, such law designed to protect such individuals such as plamtiff.
MOTION IN LIMINENO
Statement of the Facts
2 Certain facts are undisputable, supported by competent evidence
3 PlaintiffGeorge Mardikian ("Mardikian" or "plaintiff") purchased an automobile msurance
4 pohcy from the defendant Wawanesa General Insurance Company ("Wawanesa" or "defendant") on
5 or about August 2005 Mardikian performed all the terms and conditions of the pohcy paying more
6 than $ 13,000 00 in premiums over the years Such pohcy was m effect as of February 20, 2012
7 Wawanesa issued the pohcy, willfullyaccepted all premiums when paid by Mardikian, and obhgated
8 itself to perform the terms and conditions of such pohcy, including the imphed covenant of good
9 faith and fair dealing, and to pay the benefits under the pohcy
10 In December of 2011, Mardikian, who had been searching and seeking to purchase a unique
11 vehicle, namely a 1964 Cadillac Eldorado 2 door convertible (heremafter referred to as the
12 "Vehicle"), eventually located a unique buy on such a vehicle The Vehicle was in the midst of
13 restoration, with significant restoration costs already incurred, and many parts to complete the
14 restoration were available from the seller
15 Mardikian, located m South San Francisco, negotiated the purchase of the Vehicle, as well
16 as the restoration parts, from the seller, I-lolt Auto Sales, of Lansing, Michigan A contract was
17 entered into for the purchase of the Velucle as well as the parts, which were packed within the car,
18 by agreeing to pay $ 1,520 00 for the "Velucle", $ 2,980 00 for the "Parts", and agreemg that
19 shipping to South San Francisco through I-lolt would cost no more than $ 1,125 00 The expressed
20 condition of the written contract was that "Allcars are shipped F.O.B. Lansing MI" This was
21 material —as Mardikian resided m South San Francisco and the Vehicle was located in Lansing, MI
22 (Declaration of Mardikian, Para 5, and 6 Mardikian would, of course, as part of the contract,
23 have to pay for the costs of shipping, while, under the expressed terms of the contract, ie
24 "F.O.B. Lansing, MI", Holt had to perform the contract by placing the Vehicle in the hands
25 of the shipper. The seller agreed to ship the car to Mardikian in South San Francisco at a cost
26 of no more than $ 1,125.00.
27 The contract was "written" and contamed the terms ofthe purchase of the vehicles, including
28 the parts A copy of the contract is attached hereto as Exhibit A. Until performed, the contract was
iVIOrloiXIN I,IMJNE Vio
3
1 an "executory contract"
The contract was not "performed" with respect to the seller's obligation until February
3 14, 2012 when the seller "shipped" the Vehicle Mardikian had, on January 27, 2012 made final
4 payment to the seller, completing his performance under this executory contract. such bemg in the
5 amount of $ 1,125 00, bringing Mardikian's acquisition costs to a total of $ 5,625.00 ($ 1,520 00+
6 $ 2,980 00+ $ 1,125 00) .
7 Under the terms of the Wawanesa insurance pohcy purchased in 2005, Mardikian had
8 coverage for "newly acquired vehicles" and the pohcy provided that comprehensive coverage for a
9 "newly acquired auto" begins on the date you become the owner" ifyou ask to insure it within
10 "30 days after you become the owner."
11 Mardikian, an attorney, believed he became the owner of the Vehicle on January 27, 2012
12 when he completed his performance under the executory contract.'n February 22, 2012,
13 pursuant to the terms of the pohcy, (and within 30 days of January 27, 2012) Mardikian gave
14 Wawanesa timely notice of the "newly acquired velncle", and asked to msure it The newly
15 acquired vehicle was damaged in transit, apparently wliile being driven by the transport truck
16 operator on February 20, 2012, and sustained fire damage
17 The vehicle eventually was shipped to South San Francisco It was dehvered to a repair
18 shop. Plaintiff obtained estimates for the repairs for the damage caused by the fire, the estimates
19 only to restore it to the "pre-fire condition" These estimates total $ 26,598 66
20 On March 29. 2012, having determined that no other painty was gomg to take responsibihty
21 for the full extent of the loss, Mardikian telephoned Wawanesa to isle a claim, explaming that the
22 Vehicle was being transported when it caught fire, and submitted the clainx for damages
23 This litigation mvolves Wawanesa's breach of the contract of msurance and its breach of the
24 covenant of good faith and fair dealing, including its ongomg breach of the covenant of good faith
25 and fair dealing. 8%ite v lVestern Title Insurance Comptu1y (1985) 40 Cal 3d 870
26 This motion is also made under the provision of the Evidence Code Section 350 encl
27
'egally, he was wrong as the Vehicle was "F 0 B Lansing, MI", discussed supra
MOTION IN UMNE No 3
1 352 and will be based upon this notice of motion, the attached memorandum of points and
2 authorities, the pleadings and papers filed herein, and all matters to which this Court must
3 or may take judicial notice, and any and all other oral and documentary evidence as may be
4 presented at the hearing on this motion.
5 The mere fact that Mr. Mardikian was wrong in the date he considered himself
6 to be the owner of the vehicle is irrelevant. He still would have timely added the vehicle
7 to the policy. Furthermore, is substantially closer to the February 14,2012 date that the
8 defendants who claims that he became the owner on December 20, 2011
10 INTRODUCTION TO MOTIONS IN LIMINE
11 The usual purpose of a motion in limine is to preclude the presentation of evidence
12 deemed inadmissible and prejudicial by the moving paity (People v Morris (1991) 53 Cal
13 3d 152, 188, Kelly v New West Federal Savings (1996) 49 Cal App 4th 659, 669 ) The
14 scope of a motion in limine is any kind of evidence that could be objected to at trial, either
15 as irrelevant or subject to discretionary exclusion as unduly prejudicial (Clemens v
16 American Warranty Corp (1987) 193 Cal App 31 444, 451) A typical order in limme
17 excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to
18 the excluded matters during trial. (People v Morris (1991) 53 Cal 3d 152, 188.) Another
19 purpose of a motion in limine is to prevent opposing counsel or witnesses from referring to
20 matters that may be prejudicial, and might create a negative inference in the jurors'inds,
21 even though they are subsequently instructed to disregard them. (Cotchett ck Cartwright,
22 CALIFORNIAPRODUCTSLIABILITYACTIONS,Ch 10, Trial, $ 10 01 j6$ (2ded Matthew
23 Bender), Davis, "Pre-Trial Motions to Suppress Prejudicial Matters, "4 Trial Lawyers Q
24 43, 43-44 (1967)) It is the prejudicial effect of the questions asked or statements made in
25 connection with the offer of the evidence, rather than the prejudicial effect of the evidence
26 itself, which a motion in hmine is intended to reach The purpose of the motion is to avoid
27 the obviously futile attempt to "unnng the bell" in the event a motion to strike is granted m
28 the proceedings before the~ury (Kelly v New West Federal Savings (1996) 49 Cal App 4th
I'lON IN LIlv1IN F. NO
luego 3
1 659, 669, Hyatt v Sierra Boat Co (1978) 79 Cal App 3d 325, 337)
2 Motions m limine serve additional purposes They permit more careful consideration
3 of evidentiary issues than would take place during tnal. They minimize side-bar conferences
4 and disruptions during tnal, allowing an uninterrupted flow of evidence By resolving
5 potentially critical issues at the outset, they enhance the efficiency of trials and promote
6 settlements (People v Morris (1991) 53 Cal 3d 152, 188, Kelly v New West Federal
7 Savings (1996) 49 Cal App 4th 659, 669-670)
8 In Clemens v American Warranty Corporation (l987) 193 CA 3d 444, the Court of
9 Appeals for the Second District directed its attention to the issue of a motion m limme to
10 exclude evidence based upon inadequate pleadings, be it a complaint which failed to state
11 a cause of action and thus does not present an issue before the Court. The Court
12 summarized:
13 "Although not expressly authorized by statute, [a motion in limine] is
recogmzed in decisions as a proper request which the trial court has inherent power
14 to entertain and grant." (3 Witkin, Cal. Evidence (3d ed. 1986) ) 2011, p 1969.) The
purpose of the motion "is to avoid the obviously futile attempt to 'unrig the bell'n the
15 event a motion to strike is granted in the proceedings before the juiy" Hyatt V.
Sierra Boat Co (1978) 79 Cal App 3d 325, 337 f145 Cal Rptr 47/ ) The scope of
such motion is any kind of evidence which could be objected to at trial, either as
irrelevant or subject to discretionary exclusion as unduly prejudicial (3 Witkin, op
17 cit supra, at p 1969; Evid. Code, ) 352 )
18 Id at 451
19
20 ONLY RELEVANT EVIDENCE IS ADMISSIBLE
21 Evidence Code Section 350 states that "(n)o evidence is admissible except relevant
22 evidence " Relevant evidence is defined by Evidence Code Section 210 as "having any tendency
23 in reason to prove or disprove any disputed fact that is of consequence to the determination
24 of the action." (Emphasis added) (People v Kelly (1992) 1 Cal 4th 495, 523, People v FIaslon
25 (1968) 69 Cal 2d 233, 245)
26 There was nothing relevant to whether the plaintiff had the right to add the subject
27 vehicle to the policy. Regardless ifthe parts were on the vehicle, or there was rust on this then
28 47 year old car, or a dent (which there was none known) or even regardless of the mileage,
MOrION IN LIMINENO 3
1 Wawanesa had not right to breach the contract and refuse to insure the vehicle.
PREJUDICIAL, CONFUSING AND MISLEADINGEVIDENCE
NIAYBK EXCLUDED
Evidence Code Section 352 gives the Court the discretion to exclude evidence ifthe
5
probative value is substantially outweighed by the probability that its admission will (a)
6
necessitate undue consumption of time or (b) create substantial danger of undue pre1udice,
7
of confusing the issues, or of misleading the jury. (People v Cardenas (1982) 31 Cal 3d 897,
8
904, People v Beagle (1972) 6Cal 3d 441, 452-53)
9
The attempt to introduce such alleged evidence in any from or to argue the allegation would
10
only result in undue confusion and pre~udice to the plamtiff and mislead the usury
11
CONCLUSION
12
It is respectfully subniitted that the motion m hmme should be granted.
13
14
Date. November 7, 2013 DAY LAW OFFICES
15
BY
17 /
Montie S Day, Attorney
18
19
20
21
22
23
28
MOTION IN LIMINENO 3
PROOF OF SERVICE BY MAILand FAX
(1013a, 2015 5 C C P )
I am acitizen of the United States and a resident of the County of Clark, State of
Nevada I ain over the age of eighteen years and not a party to the witlun action, my
busmess address is 1235 Casa Palermo Circle, I-lenderson, Nevada 89011
On November 7, 2013, I served the following docunients.
MOTION IN LIMINENO 3
MOTION TO PRECLUDE ANY EVIDENCE OF OR ARGUEMENTS
OF MISREPRESENTATION OR CONCEALMENT IN ADDING
VEHICLE TO POLICY
m said action, by placing a true copy thereof enclosed ma sealed envelope with postage
thereon fully prepaid, in the United States Post Office mail box at Henderson, Nevada
addressed as follows.
Mr. Kenneth N Greenfield, Attorney
Ms. Alexandra N Selfndge, Attorney
Law Offices of Kenneth N. Greenfield
16516 Bernardo Center Drive, Suite 201
San Diego, CA 92128
AND FAXING SUCH DOCUMENT TO THE ABOVE AT'58-675-0319
I declare under penalty of perjury under the laws of the State of California that
the foregomg is true and correct Executed on November 7, 2013 at Henderson, Nevada
Montie S. Day /
Preview
1 DAY LAW OFFICES 2 Niontie S. Attorneys Casa Day, at Law ¹073327 Palermo Circle PKLE9 SAN V)ATEQ lt GUNS 1235 3 Henderson, Nevada 89011 'I"el'208) 280-3766 OCT I9 015 4 Email. msdayesq@aol.corn Attorney for Plaintiff George Mardikian lerkof the pano C rt 5 EPUTY CLERK SUPERIOR COURT OF THE STATE OF CALIFORNI COUNTY OF SAN MATEO 10 GEORGE MARDIKIAN, ) 11 ) CASE NO. CIV 517132 Plaintiff. ) MOTION TO PRECLUDE EVIDENCE OF 12 ) OR ARGUMENTS OF vs. ) MISREPRESENTATION OR 13 ) CONCEALMENT IN ADDING VEHICLE vs. ) TO THE POLICY 14 WAWANESA GENERAL ) INSURANCE COMPANY, a ) (MOTION IN LIMINENO 3) 15 corporation, and DOES 1 through 50, ) Date: November 12, 2013 inclusive, ) Time: 2.00 p.m 16 ) Dept.: TO BE ASSIGNED Defendants. ) (Unlimited Jurisdiction) 17 ) Filed October 3, 2012 TRIAL DATE: November 12, 2013 ]8 MOTION IN LIMINENO. 3. Motion to exclude any reference to or evidence of any 1L) kmd that the plaintiffmade any material misrepresentations and/or concealment at the time 20 he added the subject vehicle to the policy on February 22, 2012. 21 ARGUMENTS 22 Plaintiff requests the Court to issue an order that the defendant's counsel may not 23 refer to or attempt to introduce at trial or before the jury any evidence or testimony that the plaintiffmade any material misrepresentation of fact or concealed any material fact when 25 notifying the defendant that he was adding the subject vehicle to the pohcy and deleting a 26 Camaro. (The Camaro was not operational and vt, assold for parts) 27 There is no question that on February 22, 2012, plaintiffgave the defendant notice that i%1OTIOiV IN LIMINF.NO ."i 1 he was adding the subject vehicle to the pohcy pursuant to the terms of the policy No claims 2 were made for damages at such time and, in fact, plaintiffdid not know whether any claims 3 for damages would be made under the policy. The sole purpose of the notice to exercise 4 the contractual right to coverage under the provision of the policy, and other than notice, 5 there was no other requirement for the plaintiffto provide additional mformation . 6 lt is furthermore undisputed that the plainti ffhad "NO PERSONAL KNOWLEDGE" 7 of the condition of the vehicle when purchased, although the plaintiff did know that parts 8 which had been re-chromed was not installed on the vehicle. I-Iowever, there is no 9 "exclusion" for coverage for any vehicle dependant upon whether it at the time had all parts 10 installed, or even exclusion any vehicle with rust, dents, or even the mileage of the "newly 11 acquired" vehicle (See Policy and Exclusions) ]2 Important also is that fact that the plaintiffhad no "personal knowledge" relating to 13 the vehicle as he explained he was purchasing the vehicle. He had never seen the vehicle. 14 Cali fornia Insurance Code Section 357(Information other than personal knowledge) ]5 specifically excludes Wawanesa's allegation that plaintiff can be charged with any 16 misrepresentation and/or concealment in any statement unless he had personal knowledge 17 of the fact so stated. The statute provides 18 "When an insured has no personal knowledge of a fact, he may nevertheless repeat 19 information which he has upon the subject, and which he believes to be true, with the 20 explanation that he does so on the information of others, or he may submit the 2] information, in its whole extent, to the insurer. In neither case is he responsible for 22 its truth, unless it proceeds from an agent of the insured, whose duty it is to give 23 the information. (Emphases added) 25 It not surprising from Wawanesa's deceptive claim practices that Wawanesa and its 26 claim adjustors/purported independent outside counsel v "ould ignore the Cahfornia law, and 27 in this case, such law designed to protect such individuals such as plamtiff. MOTION IN LIMINENO Statement of the Facts 2 Certain facts are undisputable, supported by competent evidence 3 PlaintiffGeorge Mardikian ("Mardikian" or "plaintiff") purchased an automobile msurance 4 pohcy from the defendant Wawanesa General Insurance Company ("Wawanesa" or "defendant") on 5 or about August 2005 Mardikian performed all the terms and conditions of the pohcy paying more 6 than $ 13,000 00 in premiums over the years Such pohcy was m effect as of February 20, 2012 7 Wawanesa issued the pohcy, willfullyaccepted all premiums when paid by Mardikian, and obhgated 8 itself to perform the terms and conditions of such pohcy, including the imphed covenant of good 9 faith and fair dealing, and to pay the benefits under the pohcy 10 In December of 2011, Mardikian, who had been searching and seeking to purchase a unique 11 vehicle, namely a 1964 Cadillac Eldorado 2 door convertible (heremafter referred to as the 12 "Vehicle"), eventually located a unique buy on such a vehicle The Vehicle was in the midst of 13 restoration, with significant restoration costs already incurred, and many parts to complete the 14 restoration were available from the seller 15 Mardikian, located m South San Francisco, negotiated the purchase of the Vehicle, as well 16 as the restoration parts, from the seller, I-lolt Auto Sales, of Lansing, Michigan A contract was 17 entered into for the purchase of the Velucle as well as the parts, which were packed within the car, 18 by agreeing to pay $ 1,520 00 for the "Velucle", $ 2,980 00 for the "Parts", and agreemg that 19 shipping to South San Francisco through I-lolt would cost no more than $ 1,125 00 The expressed 20 condition of the written contract was that "Allcars are shipped F.O.B. Lansing MI" This was 21 material —as Mardikian resided m South San Francisco and the Vehicle was located in Lansing, MI 22 (Declaration of Mardikian, Para 5, and 6 Mardikian would, of course, as part of the contract, 23 have to pay for the costs of shipping, while, under the expressed terms of the contract, ie 24 "F.O.B. Lansing, MI", Holt had to perform the contract by placing the Vehicle in the hands 25 of the shipper. The seller agreed to ship the car to Mardikian in South San Francisco at a cost 26 of no more than $ 1,125.00. 27 The contract was "written" and contamed the terms ofthe purchase of the vehicles, including 28 the parts A copy of the contract is attached hereto as Exhibit A. Until performed, the contract was iVIOrloiXIN I,IMJNE Vio 3 1 an "executory contract" The contract was not "performed" with respect to the seller's obligation until February 3 14, 2012 when the seller "shipped" the Vehicle Mardikian had, on January 27, 2012 made final 4 payment to the seller, completing his performance under this executory contract. such bemg in the 5 amount of $ 1,125 00, bringing Mardikian's acquisition costs to a total of $ 5,625.00 ($ 1,520 00+ 6 $ 2,980 00+ $ 1,125 00) . 7 Under the terms of the Wawanesa insurance pohcy purchased in 2005, Mardikian had 8 coverage for "newly acquired vehicles" and the pohcy provided that comprehensive coverage for a 9 "newly acquired auto" begins on the date you become the owner" ifyou ask to insure it within 10 "30 days after you become the owner." 11 Mardikian, an attorney, believed he became the owner of the Vehicle on January 27, 2012 12 when he completed his performance under the executory contract.'n February 22, 2012, 13 pursuant to the terms of the pohcy, (and within 30 days of January 27, 2012) Mardikian gave 14 Wawanesa timely notice of the "newly acquired velncle", and asked to msure it The newly 15 acquired vehicle was damaged in transit, apparently wliile being driven by the transport truck 16 operator on February 20, 2012, and sustained fire damage 17 The vehicle eventually was shipped to South San Francisco It was dehvered to a repair 18 shop. Plaintiff obtained estimates for the repairs for the damage caused by the fire, the estimates 19 only to restore it to the "pre-fire condition" These estimates total $ 26,598 66 20 On March 29. 2012, having determined that no other painty was gomg to take responsibihty 21 for the full extent of the loss, Mardikian telephoned Wawanesa to isle a claim, explaming that the 22 Vehicle was being transported when it caught fire, and submitted the clainx for damages 23 This litigation mvolves Wawanesa's breach of the contract of msurance and its breach of the 24 covenant of good faith and fair dealing, including its ongomg breach of the covenant of good faith 25 and fair dealing. 8%ite v lVestern Title Insurance Comptu1y (1985) 40 Cal 3d 870 26 This motion is also made under the provision of the Evidence Code Section 350 encl 27 'egally, he was wrong as the Vehicle was "F 0 B Lansing, MI", discussed supra MOTION IN UMNE No 3 1 352 and will be based upon this notice of motion, the attached memorandum of points and 2 authorities, the pleadings and papers filed herein, and all matters to which this Court must 3 or may take judicial notice, and any and all other oral and documentary evidence as may be 4 presented at the hearing on this motion. 5 The mere fact that Mr. Mardikian was wrong in the date he considered himself 6 to be the owner of the vehicle is irrelevant. He still would have timely added the vehicle 7 to the policy. Furthermore, is substantially closer to the February 14,2012 date that the 8 defendants who claims that he became the owner on December 20, 2011 10 INTRODUCTION TO MOTIONS IN LIMINE 11 The usual purpose of a motion in limine is to preclude the presentation of evidence 12 deemed inadmissible and prejudicial by the moving paity (People v Morris (1991) 53 Cal 13 3d 152, 188, Kelly v New West Federal Savings (1996) 49 Cal App 4th 659, 669 ) The 14 scope of a motion in limine is any kind of evidence that could be objected to at trial, either 15 as irrelevant or subject to discretionary exclusion as unduly prejudicial (Clemens v 16 American Warranty Corp (1987) 193 Cal App 31 444, 451) A typical order in limme 17 excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to 18 the excluded matters during trial. (People v Morris (1991) 53 Cal 3d 152, 188.) Another 19 purpose of a motion in limine is to prevent opposing counsel or witnesses from referring to 20 matters that may be prejudicial, and might create a negative inference in the jurors'inds, 21 even though they are subsequently instructed to disregard them. (Cotchett ck Cartwright, 22 CALIFORNIAPRODUCTSLIABILITYACTIONS,Ch 10, Trial, $ 10 01 j6$ (2ded Matthew 23 Bender), Davis, "Pre-Trial Motions to Suppress Prejudicial Matters, "4 Trial Lawyers Q 24 43, 43-44 (1967)) It is the prejudicial effect of the questions asked or statements made in 25 connection with the offer of the evidence, rather than the prejudicial effect of the evidence 26 itself, which a motion in hmine is intended to reach The purpose of the motion is to avoid 27 the obviously futile attempt to "unnng the bell" in the event a motion to strike is granted m 28 the proceedings before the~ury (Kelly v New West Federal Savings (1996) 49 Cal App 4th I'lON IN LIlv1IN F. NO luego 3 1 659, 669, Hyatt v Sierra Boat Co (1978) 79 Cal App 3d 325, 337) 2 Motions m limine serve additional purposes They permit more careful consideration 3 of evidentiary issues than would take place during tnal. They minimize side-bar conferences 4 and disruptions during tnal, allowing an uninterrupted flow of evidence By resolving 5 potentially critical issues at the outset, they enhance the efficiency of trials and promote 6 settlements (People v Morris (1991) 53 Cal 3d 152, 188, Kelly v New West Federal 7 Savings (1996) 49 Cal App 4th 659, 669-670) 8 In Clemens v American Warranty Corporation (l987) 193 CA 3d 444, the Court of 9 Appeals for the Second District directed its attention to the issue of a motion m limme to 10 exclude evidence based upon inadequate pleadings, be it a complaint which failed to state 11 a cause of action and thus does not present an issue before the Court. The Court 12 summarized: 13 "Although not expressly authorized by statute, [a motion in limine] is recogmzed in decisions as a proper request which the trial court has inherent power 14 to entertain and grant." (3 Witkin, Cal. Evidence (3d ed. 1986) ) 2011, p 1969.) The purpose of the motion "is to avoid the obviously futile attempt to 'unrig the bell'n the 15 event a motion to strike is granted in the proceedings before the juiy" Hyatt V. Sierra Boat Co (1978) 79 Cal App 3d 325, 337 f145 Cal Rptr 47/ ) The scope of such motion is any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial (3 Witkin, op 17 cit supra, at p 1969; Evid. Code, ) 352 ) 18 Id at 451 19 20 ONLY RELEVANT EVIDENCE IS ADMISSIBLE 21 Evidence Code Section 350 states that "(n)o evidence is admissible except relevant 22 evidence " Relevant evidence is defined by Evidence Code Section 210 as "having any tendency 23 in reason to prove or disprove any disputed fact that is of consequence to the determination 24 of the action." (Emphasis added) (People v Kelly (1992) 1 Cal 4th 495, 523, People v FIaslon 25 (1968) 69 Cal 2d 233, 245) 26 There was nothing relevant to whether the plaintiff had the right to add the subject 27 vehicle to the policy. Regardless ifthe parts were on the vehicle, or there was rust on this then 28 47 year old car, or a dent (which there was none known) or even regardless of the mileage, MOrION IN LIMINENO 3 1 Wawanesa had not right to breach the contract and refuse to insure the vehicle. PREJUDICIAL, CONFUSING AND MISLEADINGEVIDENCE NIAYBK EXCLUDED Evidence Code Section 352 gives the Court the discretion to exclude evidence ifthe 5 probative value is substantially outweighed by the probability that its admission will (a) 6 necessitate undue consumption of time or (b) create substantial danger of undue pre1udice, 7 of confusing the issues, or of misleading the jury. (People v Cardenas (1982) 31 Cal 3d 897, 8 904, People v Beagle (1972) 6Cal 3d 441, 452-53) 9 The attempt to introduce such alleged evidence in any from or to argue the allegation would 10 only result in undue confusion and pre~udice to the plamtiff and mislead the usury 11 CONCLUSION 12 It is respectfully subniitted that the motion m hmme should be granted. 13 14 Date. November 7, 2013 DAY LAW OFFICES 15 BY 17 / Montie S Day, Attorney 18 19 20 21 22 23 28 MOTION IN LIMINENO 3 PROOF OF SERVICE BY MAILand FAX (1013a, 2015 5 C C P ) I am acitizen of the United States and a resident of the County of Clark, State of Nevada I ain over the age of eighteen years and not a party to the witlun action, my busmess address is 1235 Casa Palermo Circle, I-lenderson, Nevada 89011 On November 7, 2013, I served the following docunients. MOTION IN LIMINENO 3 MOTION TO PRECLUDE ANY EVIDENCE OF OR ARGUEMENTS OF MISREPRESENTATION OR CONCEALMENT IN ADDING VEHICLE TO POLICY m said action, by placing a true copy thereof enclosed ma sealed envelope with postage thereon fully prepaid, in the United States Post Office mail box at Henderson, Nevada addressed as follows. Mr. Kenneth N Greenfield, Attorney Ms. Alexandra N Selfndge, Attorney Law Offices of Kenneth N. Greenfield 16516 Bernardo Center Drive, Suite 201 San Diego, CA 92128 AND FAXING SUCH DOCUMENT TO THE ABOVE AT'58-675-0319 I declare under penalty of perjury under the laws of the State of California that the foregomg is true and correct Executed on November 7, 2013 at Henderson, Nevada Montie S. Day /