Preview
1 JEFFERY C. LONG – State Bar # 226618
ERIC S. EMANUELS – State Bar # 140168
2 LEVANGIE LAW GROUP
2021 N Street
3 Sacramento, CA 95811
Tel: (916) 443-4849
4 Fax: (916) 443-4855
Email: jeffery.long@llg-law.com
5
Attorneys for Defendants/Cross-Complainants
6 GRANITE OAKS APARTMENT HOMES and
FIRST POINTE MANAGEMENT GROUP
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF PLACER
10
11 SONYA ABLES, CASE NO. SCV0040413
12 Plaintiff,
MOTION IN LIMINE NO. 6
13 v.
DEFENDANTS’ MOTION TO EXCLUDE
14 GRANITE OAKS APARTMENT HOMES, REFERENCE TO DEFENDANTS’
FIRST POINTE MANAGEMENT GROUP, ABSENCE FROM TRIAL
15 THE EZRALOW COMPANY, LLC, and
DOES 1 through 20,
16
Defendants.
17
18 AND RELATED CROSS-ACTIONS. Complaint Filed : 12/04/17
Trial Date : 06/08/20
19
20 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
21 COME NOW Defendants GRANITE OAKS APARTMENT HOMES and
22 FIRST POINTE MANAGEMENT GROUP and move for an order precluding any reference to
23 the absence of Defendant’s representatives during trial. This motion is based on the grounds that
24 such references violate Evidence Code §352 and should be excluded under the same.
25 ///
26 ///
27 ///
28 ///
1
DEFENDANTS’ MOTION IN LIMINE NO. 6
1 MEMORANDUM OF POINTS & AUTHORITIES
2 I. ARGUMENT
3 Plaintiff SONYA ABLES filed a personal injury lawsuit alleging negligence because she
4 fell at 9:00 p.m. on August 11, 2015, while carrying a bag of potting soil on a walkway that she
5 had used between 7 and 14 times weekly for the previous two years. She alleges that lighting
6 was inadequate and that she will require ankle surgery because of her fall.
7 A. THIS COURT SHOULD INSTRUCT THE JURY THAT ANY ABSENCE OF
DEFENDANT DURING THE TRIAL SHOULD NOT BE CONSIDERED OR
8 CONSTRUED ADVERSELY.
9 In a civil trial, the attendance of the parties or their representatives at trial, unless
10 subpoenaed or otherwise required, is not necessary. In this case, Defendant Aronson
11 Landscaping is a small company that is operated primarily by the owner and it is currently
12 engaged in numerous ongoing projects. Defendants Granite Oaks and First Pointe are large
13 companies operated out of a corporate office in Southern California. Although representatives
14 plan to attend the trial, one or more may be absent at times due to professional obligations related
15 to these ongoing projects and/or the limitations caused by travel. Because a jury may not be
16 aware of the non-attendance requirement, they may view the unexplained absence in a manner so
17 as to draw an unfavorable inference toward them (particularly if commented upon by counsel).
18 As such, the lack of specific instructions to the contrary could pose a substantial danger of
19 prejudice to Defendants.
20 California Evidence Code §352 provides in pertinent part:
21 The court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its
22 admission will . . . (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.
23
24 Although the general rule is that all facts having rational probative value are admissible, this
25 principle is subject to a number of exceptions, based upon a counter-balancing of factors and
26 extrinsic policy. Among these, the most important is undue prejudice. See, generally, Love v.
27 Wolf (1964) 226 Cal.App.2d 378. Another is that justice is to be accorded to the rich and poor
28 alike. Id. Therefore, Defendants submit that they would suffer undue prejudice and be unjustly
2
DEFENDANTS’ MOTION IN LIMINE NO. 6
1 treated because of its absence at trial if a jury was not informed and/or if Plaintiff’s counsel
2 attempts to negatively comment upon such absence. That result would fly in the face of
3 Evidence Code §352 and the injustices it is designed to prevent.
4 II. CONCLUSION
5 For the foregoing reasons, Defendant GRANITE OAKS APARTMENT HOMES and
6 FIRST POINTE MANAGEMENT GROUP, respectfully request this Court advise the jury that
7 any absence of their representatives during trial must not be construed adversely against them.
8 Additionally, any such absence should not be commented upon by counsel during the trial in this
9 matter.
10
11 DATED: May 27, 2020 LEVANGIE LAW GROUP
12
13 By:___________________________________
JEFFERY C. LONG
14 ERIC S. EMANUELS
Attorney for Defendants/Cross-Complainants
15 GRANITE OAKS APARTMENT HOMES and
FIRST POINTE MANAGEMENT GROUP
16
17
18
19
20
21
22
23
24
25
26
27
28
3
DEFENDANTS’ MOTION IN LIMINE NO. 6
1 Ables v. Granite Oaks, et. al.
Placer County Superior Court Case No. SCV0040413
2
3 PROOF OF SERVICE
4 I, the undersigned, declare that I am, and was at the time of service of the papers herein
referred to, over the age of 18 years and not a party to the within action or proceeding. My
5 business address is 2021 N Street, Sacramento, California, 95811, which is located in the county
in which the within-mentioned service occurred.
6
7 On this date, I served the following document(s): MOTION IN LIMINE NO. 6:
DEFENDANTS’ MOTION TO EXCLUDE REFERENCE TO DEFENDANTS’ ABSENCE
8 FROM TRIAL to each addressee named below:
9 Robin J. Smith James H. Olson
R.J. Smith Law Office Law Offices of Yempuku & McNamara
10 P.O. Box 698 2180 Harvard Street, Suite 375
Roseville, CA 95661 Sacramento, CA 95815
11 rsmith@rjsmithlawoffice.com Phone: (916) 649-8333 / Fax: (603) 334-7903
pgarcia@rjsmithlawoffice.com james.olson@libertymutual.com
12 Phone: (916) 437-4301 / Fax: (916) 437-4302 sacmail@libertymutual.com.
ATTORNEY FOR PLAINTIFF Attorneys for Defendant
13 ARONSON INDUSTRIES, INC.
(erroneously sued as ARONSON
14 LANDSCAPE, INC.) (DOE 1)
15 [X] ONLY BY ELECTRONIC TRANSMISSION. Only by e-mailing the document(s) to the
persons at the e-mail address(es) listed above based on notice provided on March 17,
16 2020 that, during the Coronavirus (Covid-19) pandemic, this office will be working
remotely, not able to send physical mail as usual, and is therefore using only electronic
17 mail. No electronic message or other indication that the transmission was unsuccessful
was received within a reasonable time after the transmission. We will continue to treat
18 deadlines set forth by the Code of Civil Procedure for physical mailing as our deadlines
for serving by e-mail, assuring all counsel actually receive additional notice.
19
20 Executed on May 27, 2020, at Sacramento, California.
21 I declare under penalty of perjury, under the laws of the State of California, that the
foregoing is true and correct.
22
23 __________________________________
Holly Marquard
24
25
26
27
28
4
DEFENDANTS’ MOTION IN LIMINE NO. 6