Preview
OF°GINAL
KNIGHT LAW GROUP LLP
Steve Mikhov (SBN 224676)
10250 Constellation Blvd., Suite 2500
FILED
HO
Los Angeles, CA 90067 SUPERIOR COURT OF CALIFORNIA
Telephone: (310) 552-2250 OUNTY OF PLACER
WD
Facsimile: (310) 552-7973
JUN 12 2019
—
HACKLER DAGHIGHIAN MARTINO & NOVAK, P.C. JAKE CHATTERS
Wn
EXECUTIVE OFFICER & CLERK
Sepehr Daghighian (SBN 239349) By: C. Waggoner, Deputy
DB
Kevin Y. Jacobson (SBN 320532)
10250 Constellation Blvd., Suite 2500
NY
Los Angeles, CA 90067
Telephone: (310) 887-1333
OA
Facsimile: (310) 887-1334
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E-mail: sd@hdmnlaw.com
kj@hdmnlaw.com
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Attorneys for Plaintiff,
ANNA P. KING
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF PLACER
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DBA
ANNA P. KING, Case No.: SCV0038637 (Dept. 40)
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Assigned to the Honorable Michael A. Jacques
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Plaintiff,
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PLAINTIFF’S MOTION IN LIMINE NO. 9
VS.
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NOTICE OF MOTION AND MOTION IN
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LIMINE TO PROHIBIT REFERENCE TO
HYUNDAI MOTOR AMERICA, a California ATTORNEY FEES
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Corporation, and DOES | through 10, inclusive,
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Complaint Filed: October 26, 2016
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Trial Date: July 1, 2019
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Defendant.
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PLAINTIFF’S MOTION IN LIMINE NO. 9
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE that Plaintiff ANNA P. KING (‘Plaintiff’) moves the Court in
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limine for an order prohibiting the introduction, either directly or indirectly, of any reference to
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attorney’s fees.
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Plaintiff further moves the Court to instruct all parties and their counsel, as well as require
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counsel to advise allwitnesses of the following:
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1. Not to attempt to convey to the jury, directly or indirectly, any of the facts mentioned
ON
in this Motion without first obtaining permission from the Court outside the presence and hearing of
the jury;
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2. Not to make any reference to the fact that this Motion has been filed; and,
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3. To warn and caution all witnesses to strictly follow the same instructions.
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This motion is based upon the supporting Memorandum of Points and Authorities, the
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Declaration of Sepehr Daghighian attached hereto, the papers and pleadings on file in this action,
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and upon such further matters that may be presented atthe hearing.
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Plaintiff advised opposing counsel of her intent to file this Motion, and attempted to meet
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and confer in good faith with regards to the subject matter of this Motion on June 11, 2019.
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Dated: June 12, 2019
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Respectfully submitted,
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HACKLER DAGHIGHIAN MARTINO & NOVAK, P.C.
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Kevin Y. bs¥n, Esq.
Attorney for Plaintiff,
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ANNA P. KING
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PLAINTIFF’S MOTION IN LIMINE NO. 9
MEMORANDUM OF POINTS AND AUTHORITIES
L. INTRODUCTION
WN
Lemon law manufacturers oftentimes make references to attorney’s fees attrial in an
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attempt to unfairly prejudice Plaintiff and unduly influence the jury. Of course, the attorney’s fees,
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if awarded, are decided by the Court following trialand are therefore irrelevant during trial.Any
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reference to attorney fees should be prohibited at trialbecause itis not relevant to any of the causes
DB
of action in the complaint or the answers in the defense. Moreover, itsminiscule probative value is
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substantially outweighed by itsprejudicial affect.
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Il. ARGUMENT: THE PARTIES SHOULD NOT BE PERMITTED TO
10 REFERENCE ATTORNEY FEES
11 A. Reference to Attorney Fees is not Relevant
12 Evidence is relevant if ithas “any tendency inreason to prove or disprove any disputed fact
13 that is of consequence to the determination of the action.” (Evid. Code § 210.) Further, “[nJo
14 evidence is admissible except relevant evidence.” (Evid. Code § 350.)
15S The Song-Beverly Consumer Warranty Act (“Song-Beverly Act’) applies a two-part test to
16 the question of whether a vehicle qualifies for repurchase: (1) the vehicle has a nonconformity! to
17 warranty; and (2) the manufacturer or itsrepresentative is unable to properly repair it after “a
18 reasonable number of attempts.” (Civ. Code, § 1793.2.) If these elements are met, Defendant should
19 be found liable for itsviolation. The statute leaves no room to consider attorney fees. On the
20 contrary, the award of attorney fees isa matter for the court.
aA This action is brought pursuant to consumer protection statutes that entitle a prevailing
22 consumer to recover costs and attorney fees. The Song-Beverly Act allows a prevailing buyer to
23 "recover as part of the judgment a sum equal to the aggregate amount of costs and expenses,
24 including attorney's fees based on actual time expended, determined by the court to have been
25 reasonably incurred by the buyer in connection with the commencement and prosecution of such
26 action." (Civ. Code § 1794(d) [emphasis added].) As the language of the statute demonstrates, the
27
‘Pursuant to the Song Beverly Act, “’Nonconformity’ means a nonconformity which substantially
28 impairs the use, value, or safety of the new motor vehicle to the buyer or lessee.” (Civ. Code, §
1793.22 subd. (e)(1).)
-2-
PLAINTIFF’S MOTION IN LIMINE NO. 9
ultimate award of attorney fees in these matters is determined by the court, not the jury. In other
words, attorney fees are facts of no consequence to the determination of the action.
WN
Moreover, the Song-Beverly Act is a remedial statute designed to protect consumers.
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(Martinez v. Kia Motors America, Inc. (2007) 193 Cal.App.4th 187, 192.) Accordingly, itmust be
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construed to bring its intended effect — the protection of consumers. (Dominguez v.American Suzuki
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Motor Corp. (2008) 160 Cal.App.4th 53, 58.) As such, evidence or argument that the application of
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the statute might have financial repercussions should not be permitted.
AN
B. The Disputed Evidence is Unduly Prejudicial
A
Assuming for the sake of argument that the evidence is marginally relevant, itshould be
So
10 excluded because any probative value issubstantially outweighed by prejudicial factors. “The Court
11 in its discretion may exclude evidence if its probative value is substantially outweighed by the
12 probability that itsadmission will (a)necessitate undue consumption of time; or (b) create substantial
13 danger of undue prejudice, confusing the issues, or misleading the jury.” (Evid. Code § 352.)
14 First, such an introduction would necessitate an undue consumption of time. (Evid. Code §
1) 352.) If Defendant was permitted to introduce such evidence or argument, Plaintiff would be
16 required to consume time to introduce evidence setting forth the purpose of the statute and the
17 legislative intent.
18 Second, evidence related to an award of attorney fees would be unduly prejudicial. (Evid.
19 Code § 352.) As discussed, the statute was enacted to protect consumers. The statute explicitly
20 provides for the award of attorney fees in order to effectuate the purpose of the statute. Argument
21 or evidence in that regard does not comport with the purpose of the statute.
22 Moreover, in Brooks v. Cook (1991) 938 F.2d 1048, 1051, the dissemination of this
px information was found to be so prejudicial that itconstituted grounds for a new trialfor the plaintiff.
24 (Id.) In Brooks, the court recognized that the important policy considerations for the fee-shifting
25 provision would be undermined if the jury was informed of the possibility of fees. (/d.) The court
26 noted, in a case where the plaintiff is entitled to compensatory damages, informing the jury of the
27 plaintiff's potential right to receive attorneys’ fees might lead the jury to offset the fees by reducing
28 the damage award. Even more troubling, however, is the case where actual damages are small or
Be
PLAINTIFF’S MOTION IN LIMINE NO. 9
nonexistent. When damages are nominal, there isa risk that the jury may believe that the "harm"
does not justify the payment of a large fee award. The jury may thus decide to find for the defendant
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rather than allow the plaintiff's attorney to recover fees. (/d. at 1051.)
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The Brooks case involved claims under 42 U.S.C. §1988, which provides that the court may
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allow the prevailing party to recover attorney fees. The jury's sole role in the case at bar is
Nn
DBD
determining liability and damages. Informing the jury of the potential to recover attorney fees
needlessly involves the jury inthe court's role of awarding attorney fees. Such needless involvement
NN
of the jury would likely lead to undue consumption of trialtime addressing an issue that the jury will
Oo
not consider and to the confusion of the issues. (Evid. Code § 352.)
So
Finally, any reference to attorney fees would confuse the relevant issues and therefore
SO
mislead the jury. (Evid. Code § 352.) The statute leaves no room to consider the potential award of
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attorney fees and such a consideration would very likely affect the damages a jury awards.
NY
Accordingly, evidence or argument in this regard would confuse the relevant issues and mislead the
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jury.
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Consequently, Defendant should be precluded from making any reference to Plaintiff's
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potential recovery of attorney fees.
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II. CONCLUSION
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Accordingly, this motion in imine should be granted, and Defendant should be ordered not
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to reference attorney’s fees at trial.
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PLAINTIFF’S MOTION IN LIMINE NO. 9
Dated: June 12, 2019
Respectfully submitted,
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HACKLER DAGHIGHIAN MARTINO & NOVAK, P.C.
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ANNA P. KING
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-5-
PLAINTIFF’S MOTION IN LIMINE NO. 9
DECLARATION OF KEVIN Y. JACOBSON
I,Kevin Y. Jacobson, declare as follows:
LY
1. I am an attorney licensed to practice law in the State of California. I am an attorney in
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association with the law firm of Knight Law Group, LLP as counsel for Plaintiff Anna P. King
F&F
(“Plaintiff”), in the above-captioned matter.
no
2. I have personal knowledge of the following facts and ifsworn as a witness, I could and
Dn
would testify to them competently.
NY
3. I advised opposing counsel of Plaintiff's intent to file this Motion and attempted to meet
A
and confer with regards to the subject matter of this Motion on June 11, 2019.
So
10 4. The introduction at trial of any reference to attorney’s fees would incurably prejudice
11 Plaintiff.
12 5. If Defendant stipulates prior to the hearing on to this motion, this motion in /imine will be
13 withdrawn. Plaintiff will immediately notify the court of the same.
14 6. If this motion is not granted, Plaintiff will suffer an undue prejudice since Plaintiff has
15 prepared this case assuming that reference to attorney fees would not be introduced.
16 I declare under penalty of perjury under the laws of the State of California that the foregoing
17 is true and correct.
18 Executed June 12, 2019 in Los Angeles, California.
19
20
21
Kevin Y.
22
23
24
25
26
27
28
-6-
PLAINTIFF’S MOTION IN LIMINE NO. 9
Preview
OF°GINAL KNIGHT LAW GROUP LLP Steve Mikhov (SBN 224676) 10250 Constellation Blvd., Suite 2500 FILED HO Los Angeles, CA 90067 SUPERIOR COURT OF CALIFORNIA Telephone: (310) 552-2250 OUNTY OF PLACER WD Facsimile: (310) 552-7973 JUN 12 2019 — HACKLER DAGHIGHIAN MARTINO & NOVAK, P.C. JAKE CHATTERS Wn EXECUTIVE OFFICER & CLERK Sepehr Daghighian (SBN 239349) By: C. Waggoner, Deputy DB Kevin Y. Jacobson (SBN 320532) 10250 Constellation Blvd., Suite 2500 NY Los Angeles, CA 90067 Telephone: (310) 887-1333 OA Facsimile: (310) 887-1334 S0o E-mail: sd@hdmnlaw.com kj@hdmnlaw.com O&O KF | Attorneys for Plaintiff, ANNA P. KING NY EE WO EF Ad SUPERIOR COURT OF CALIFORNIA Fe OE COUNTY OF PLACER XV4d OE DBA ANNA P. KING, Case No.: SCV0038637 (Dept. 40) KE Assigned to the Honorable Michael A. Jacques 8K Plaintiff, WBN PLAINTIFF’S MOTION IN LIMINE NO. 9 VS. BR NOTICE OF MOTION AND MOTION IN ODO LIMINE TO PROHIBIT REFERENCE TO HYUNDAI MOTOR AMERICA, a California ATTORNEY FEES TD DN Corporation, and DOES | through 10, inclusive, NO Complaint Filed: October 26, 2016 KFK& Trial Date: July 1, 2019 NY Defendant. NN WY KN Ff HN un HN Dn NO NY wo oOo NO PLAINTIFF’S MOTION IN LIMINE NO. 9 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: eR PLEASE TAKE NOTICE that Plaintiff ANNA P. KING (‘Plaintiff’) moves the Court in NO limine for an order prohibiting the introduction, either directly or indirectly, of any reference to WD attorney’s fees. Re Plaintiff further moves the Court to instruct all parties and their counsel, as well as require Nn counsel to advise allwitnesses of the following: Do 1. Not to attempt to convey to the jury, directly or indirectly, any of the facts mentioned ON in this Motion without first obtaining permission from the Court outside the presence and hearing of the jury; So 2. Not to make any reference to the fact that this Motion has been filed; and, OC 3. To warn and caution all witnesses to strictly follow the same instructions. S| KF This motion is based upon the supporting Memorandum of Points and Authorities, the NYO OSE Declaration of Sepehr Daghighian attached hereto, the papers and pleadings on file in this action, W OF and upon such further matters that may be presented atthe hearing. F&F FSF Plaintiff advised opposing counsel of her intent to file this Motion, and attempted to meet vn KF and confer in good faith with regards to the subject matter of this Motion on June 11, 2019. non KF KF Won Dated: June 12, 2019 HF UO Respectfully submitted, HF HACKLER DAGHIGHIAN MARTINO & NOVAK, P.C. CO HN K-§ HN Ne NY Kevin Y. bs¥n, Esq. Attorney for Plaintiff, We NY ANNA P. KING Se HN NW HN TN Nb wo oN DO abe PLAINTIFF’S MOTION IN LIMINE NO. 9 MEMORANDUM OF POINTS AND AUTHORITIES L. INTRODUCTION WN Lemon law manufacturers oftentimes make references to attorney’s fees attrial in an WH attempt to unfairly prejudice Plaintiff and unduly influence the jury. Of course, the attorney’s fees, SP if awarded, are decided by the Court following trialand are therefore irrelevant during trial.Any On reference to attorney fees should be prohibited at trialbecause itis not relevant to any of the causes DB of action in the complaint or the answers in the defense. Moreover, itsminiscule probative value is NY substantially outweighed by itsprejudicial affect. OC Oo Il. ARGUMENT: THE PARTIES SHOULD NOT BE PERMITTED TO 10 REFERENCE ATTORNEY FEES 11 A. Reference to Attorney Fees is not Relevant 12 Evidence is relevant if ithas “any tendency inreason to prove or disprove any disputed fact 13 that is of consequence to the determination of the action.” (Evid. Code § 210.) Further, “[nJo 14 evidence is admissible except relevant evidence.” (Evid. Code § 350.) 15S The Song-Beverly Consumer Warranty Act (“Song-Beverly Act’) applies a two-part test to 16 the question of whether a vehicle qualifies for repurchase: (1) the vehicle has a nonconformity! to 17 warranty; and (2) the manufacturer or itsrepresentative is unable to properly repair it after “a 18 reasonable number of attempts.” (Civ. Code, § 1793.2.) If these elements are met, Defendant should 19 be found liable for itsviolation. The statute leaves no room to consider attorney fees. On the 20 contrary, the award of attorney fees isa matter for the court. aA This action is brought pursuant to consumer protection statutes that entitle a prevailing 22 consumer to recover costs and attorney fees. The Song-Beverly Act allows a prevailing buyer to 23 "recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, 24 including attorney's fees based on actual time expended, determined by the court to have been 25 reasonably incurred by the buyer in connection with the commencement and prosecution of such 26 action." (Civ. Code § 1794(d) [emphasis added].) As the language of the statute demonstrates, the 27 ‘Pursuant to the Song Beverly Act, “’Nonconformity’ means a nonconformity which substantially 28 impairs the use, value, or safety of the new motor vehicle to the buyer or lessee.” (Civ. Code, § 1793.22 subd. (e)(1).) -2- PLAINTIFF’S MOTION IN LIMINE NO. 9 ultimate award of attorney fees in these matters is determined by the court, not the jury. In other words, attorney fees are facts of no consequence to the determination of the action. WN Moreover, the Song-Beverly Act is a remedial statute designed to protect consumers. W (Martinez v. Kia Motors America, Inc. (2007) 193 Cal.App.4th 187, 192.) Accordingly, itmust be Fe construed to bring its intended effect — the protection of consumers. (Dominguez v.American Suzuki an Motor Corp. (2008) 160 Cal.App.4th 53, 58.) As such, evidence or argument that the application of Dn the statute might have financial repercussions should not be permitted. AN B. The Disputed Evidence is Unduly Prejudicial A Assuming for the sake of argument that the evidence is marginally relevant, itshould be So 10 excluded because any probative value issubstantially outweighed by prejudicial factors. “The Court 11 in its discretion may exclude evidence if its probative value is substantially outweighed by the 12 probability that itsadmission will (a)necessitate undue consumption of time; or (b) create substantial 13 danger of undue prejudice, confusing the issues, or misleading the jury.” (Evid. Code § 352.) 14 First, such an introduction would necessitate an undue consumption of time. (Evid. Code § 1) 352.) If Defendant was permitted to introduce such evidence or argument, Plaintiff would be 16 required to consume time to introduce evidence setting forth the purpose of the statute and the 17 legislative intent. 18 Second, evidence related to an award of attorney fees would be unduly prejudicial. (Evid. 19 Code § 352.) As discussed, the statute was enacted to protect consumers. The statute explicitly 20 provides for the award of attorney fees in order to effectuate the purpose of the statute. Argument 21 or evidence in that regard does not comport with the purpose of the statute. 22 Moreover, in Brooks v. Cook (1991) 938 F.2d 1048, 1051, the dissemination of this px information was found to be so prejudicial that itconstituted grounds for a new trialfor the plaintiff. 24 (Id.) In Brooks, the court recognized that the important policy considerations for the fee-shifting 25 provision would be undermined if the jury was informed of the possibility of fees. (/d.) The court 26 noted, in a case where the plaintiff is entitled to compensatory damages, informing the jury of the 27 plaintiff's potential right to receive attorneys’ fees might lead the jury to offset the fees by reducing 28 the damage award. Even more troubling, however, is the case where actual damages are small or Be PLAINTIFF’S MOTION IN LIMINE NO. 9 nonexistent. When damages are nominal, there isa risk that the jury may believe that the "harm" does not justify the payment of a large fee award. The jury may thus decide to find for the defendant NYO rather than allow the plaintiff's attorney to recover fees. (/d. at 1051.) WW! The Brooks case involved claims under 42 U.S.C. §1988, which provides that the court may ee allow the prevailing party to recover attorney fees. The jury's sole role in the case at bar is Nn DBD determining liability and damages. Informing the jury of the potential to recover attorney fees needlessly involves the jury inthe court's role of awarding attorney fees. Such needless involvement NN of the jury would likely lead to undue consumption of trialtime addressing an issue that the jury will Oo not consider and to the confusion of the issues. (Evid. Code § 352.) So Finally, any reference to attorney fees would confuse the relevant issues and therefore SO mislead the jury. (Evid. Code § 352.) The statute leaves no room to consider the potential award of KF eR attorney fees and such a consideration would very likely affect the damages a jury awards. NY Accordingly, evidence or argument in this regard would confuse the relevant issues and mislead the Ee WY jury. FF Ee Consequently, Defendant should be precluded from making any reference to Plaintiff's Fe DAHA potential recovery of attorney fees. Ee II. CONCLUSION ANY eee Accordingly, this motion in imine should be granted, and Defendant should be ordered not OH to reference attorney’s fees at trial. OO /// TD KN /// KF& KN /// NY KN /I/ We KH /// ek HN /I/ AN KH // KO HN /I/ wp oN /I/ NO -4- PLAINTIFF’S MOTION IN LIMINE NO. 9 Dated: June 12, 2019 Respectfully submitted, YO HACKLER DAGHIGHIAN MARTINO & NOVAK, P.C. WY Se OO DN ANNA P. KING YN Oo So OS EES KF rE NY WY FEF Fe EE Hn KEE WON HE UO Ke TO HN NO NF NN We NO Se NY AN NO BNO NO NO oN NO -5- PLAINTIFF’S MOTION IN LIMINE NO. 9 DECLARATION OF KEVIN Y. JACOBSON I,Kevin Y. Jacobson, declare as follows: LY 1. I am an attorney licensed to practice law in the State of California. I am an attorney in WW association with the law firm of Knight Law Group, LLP as counsel for Plaintiff Anna P. King F&F (“Plaintiff”), in the above-captioned matter. no 2. I have personal knowledge of the following facts and ifsworn as a witness, I could and Dn would testify to them competently. NY 3. I advised opposing counsel of Plaintiff's intent to file this Motion and attempted to meet A and confer with regards to the subject matter of this Motion on June 11, 2019. So 10 4. The introduction at trial of any reference to attorney’s fees would incurably prejudice 11 Plaintiff. 12 5. If Defendant stipulates prior to the hearing on to this motion, this motion in /imine will be 13 withdrawn. Plaintiff will immediately notify the court of the same. 14 6. If this motion is not granted, Plaintiff will suffer an undue prejudice since Plaintiff has 15 prepared this case assuming that reference to attorney fees would not be introduced. 16 I declare under penalty of perjury under the laws of the State of California that the foregoing 17 is true and correct. 18 Executed June 12, 2019 in Los Angeles, California. 19 20 21 Kevin Y. 22 23 24 25 26 27 28 -6- PLAINTIFF’S MOTION IN LIMINE NO. 9