Preview
1 ROBERT H. ZIMMERMAN, BAR NO. 84345
SCHUERING ZIMMERMAN & DOYLE, LLP
2 400 University Avenue
Sacramento, California 95825-6502 12/8/2020
3 (916) 567-0400
FAX: 568-0400
4
5 Attorneys for Defendant ENLOE MEDICAL CENTER
6
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
9
10 PATSY NEWTON, individually; HAROLD ) NO. 20CV01091
NEWTON, individually; SUZANNE )
11 BOLDEN, individually, ) Assigned to Judge Tamara L. Mosbarger
) for All Purposes
12 )
) DEFENDANT'S OPPOSITION TO
13 Plaintiffs, ) PLAINTIFF'S MOTION IN LIMINE NO. 6
) RE QUESTIONING MANDATED
14 vs. ) REPORTERS
)
15 ENLOE MEDICAL CENTER; and DOES 1 - ) Date: February 4, 2021
50, et al., ) Time: 1:30 p.m.
16 ) Dept: 1
)
17 Defendants. ) Action Filed: May 29, 2020
______________________________________ ) Trial Date: February 8, 2021
18
19 Defendant ENLOE MEDICAL CENTER hereby opposed plaintiffs’ motion in limine
20 no. 6. to preclude any questions or answers regarding certain mandated reporters not
21 reporting suspected elder abuse relating to Ms. Newton and submits the following
22 memorandum of points and authorities.
23 I.
24 INTRODUCTION
25 Plaintiffs’ Motion in Limine No. 6 asks this Court to precluded defense counsel from
26 posing questions or seeking answers regarding certain individuals, who are required by
27 law to report incidents of elder abuse, failed to do so related to Ms. Newton. Plaintiffs
28 argue that many care providers, who are mandated reporters, lack the knowledge and
01305254.WPD 1
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 6 RE QUESTIONING MANDATED
REPORTERS
1 training of what it takes to be a mandated reporter and are not fully aware of their
2 responsibilities under California Welfare and Institutions Code §15360. Plaintiffs seek to
3 set aside the questions because they feel the information is not relevant to this case.
4 However, plaintiffs’ position related to any mandated reporters failure to report elder
5 abuse is flawed and instead is directly applicable to his case as plaintiffs’ complaint
6 identified an elder abuse cause of action. Therefore, plaintiffs’ motion should be denied.
7 II.
8 ARGUMENT
9 A. Plaintiffs Mischaracterize the Relevance of Questions and Answers
Related to Certain Mandated Reporters
10
11 Plaintiffs have made their elder abuse claims the centerpiece of their litigation in
12 this matter by making elder abuse the first cause of action in the complaint. Plaintiffs
13 claim that defendant recklessly neglected Ms. Newton and in the same breath then try to
14 argue that questions and answers related to other mandated reporters’ failure to report
15 any “elder abuse” by defendant is not relevant. Evidence Code §351 states “Except as
16 otherwise provided by statute, all relevant evidence is admissible.”
17 Relevant evidence includes evidence “having any tendency in reason to prove or
18 disprove any disputed fact that is of consequence to the determination of the action.”
19 (Evidence Code §210.) In this case the evidence is directly related to the observations,
20 impressions and state of mind of many witnesses, with medical training, who observed
21 Ms. Newton and the care and services she received from defendant. Additionally, case
22 law supports defendant’s right to disprove a plaintiff’s claim. In Potter v. Firestone (1993)
23 6 Cal.4th 965, the court admitted evidence of smoking by the plaintiff, holding that such
24 evidence was relevant to whether the plaintiff’s alleged fear of developing cancer as a
25 result of exposure to carcinogens due to the defendant’s conduct was reasonable and/or
26 genuine. The court specifically held, “If a plaintiff had smoked heavily for 20 years without
27 fearing cancer, the trier of fact may consider that evidence in assessing the legitimacy of
28 the plaintiff’s fear of cancer claim.” (Id., at pgs. 1011-12; see also generally Boo v. San
01305254.WPD 2
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 6 RE QUESTIONING MANDATED
REPORTERS
1 Francisco Terminal Rys. (1920) 182 Cal. 93.)
2 As an example of the relevance of the evidence, to prove neglect in an elder abuse
3 case, a plaintiff must establish a standard distinct from professional negligence. Neglect
4 involves not the “undertaking of medical services, but the failure to provide medical
5 care.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) To ensure that
6 instances of elder abuse are reported, the government has taken a very firm stance on a
7 mandated reporter’s failure to report. Welfare and Institutions Code §15630(h) makes a
8 mandated reporter’s failure to report crime punishable by incarceration and a fine.
9 Specifically, that Section states:
10 Failure to report, or impending or inhibiting a report of,
physical abuse, as defined in Section 15619.63,
11 abandonment, abduction, isolation, financial abuse, or
neglect of an elder or dependent adult, in violation of this
12 section, is a misdemeanor, punishable by not more than six
months in the county jail, by a fine of not more than one
13 thousand dollars ($1,000), or by both that fine and
imprisonment.
14
15 The Section goes on to describe a more significant penalty for willful failures to report
16 further demonstrating California’s commitment to reporting elder abuse.
17 Therefore, if Ms. Newton or any other person had told any mandated reported of
18 any alleged elder abuse, the mandated reporter’s failure to report the alleged abuse
19 would have been a crime. Therefore, the mandated reporter’s failure to report the abuse
20 is entirely relevant to Ms. Newton’s claims. It may be that a mandated reporter did not feel
21 that the information warranted reporting the elder abuse — certainly this would undercut
22 plaintiff’s neglect claim. Moreover, if the mandated reporter also had the opportunity to
23 treat Ms. Newton and found no evidence of elder abuse – this again would be completely
24 relevant to an essential element of neglect and therefore wholly relevant in the matter.
25 Accordingly, questions or answers related to the failure to report are essential to the
26 presentation of evidence in this matter.
27 As a fallback argument, plaintiffs seek to exclude any questions and answers
28 regarding a mandated reporter’s failure to report because the information would be more
01305254.WPD 3
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 6 RE QUESTIONING MANDATED
REPORTERS
1 prejudicial than probative (citing Evidence Code §352.) In support of their position
2 plaintiffs explain that not every mandated reporter necessarily understands what he or
3 she must do in a role of a mandated and therefore any failure to report could have been
4 based on a misunderstanding of the law. Moreover, plaintiffs claim that the mixed
5 messages the jury may receive from different mandated reporters relating to elder abuse
6 could detract from other evidence before the jury. Plaintiffs’ positions are not valid.
7 As an initial matter, it is a crime to not report suspected elder abuse. There is no
8 provision in the statute allowing individuals to escape liability for failure to report because
9 they did not know or understand the law. Ignorance of the law is no excuse. This is
10 similar to fighting an excessive speeding ticket because you were ignorant as to the speed
11 limit. Plaintiffs cannot, in good faith, stand behind the position that questions or answers
12 related to certain mandated reporters because the mandated reporters were unaware of
13 the legal requirements to report suspected elder abuse. A reporter’s ignorance is simply
14 no excuse. Moreover, plaintiffs’ counsel can cross examine a witness on their
15 understanding of law and why he or she did not report suspected elder abuse as it
16 pertains to Ms. Newton.
17 As to the issue of the mixed messages from the mandated reporters, as noted
18 above, the law is clear as to what constitutes elder abuse and is clear as to who is
19 required to report elder abuse and this information is very much probative of the claims
20 and defenses of the parties to the action. It is in the province of the jury to decide what
21 evidence they understand and choose to believe in deciding the case. Whether a
22 mandated reporter – who is required by law to report suspected elder abuse – failed to
23 report the alleged abuse is very much relevant to the matter before this court and is
24 probative to the claims and defenses of the parties. Plaintiffs simply cannot seek to
25 exclude any evidence because it may hurt their ability to prevail on their claims.
26 There is no basis for an order that would preclude the defendant from asking
27 questions or seeking answers regarding certain mandated reporters’ suspected elder
28 abuse. Therefore, plaintiffs’ motion must be denied.
01305254.WPD 4
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 6 RE QUESTIONING MANDATED
REPORTERS
1 III.
2 CONCLUSION
3 For the foregoing reasons, defendant respectfully requests that plaintiffs’ motion
4 in limine be denied.
5 Dated: December 7, 2020
6 SCHUERING ZIMMERMAN & DOYLE, LLP
7
8 By /s/ Robert H. Zimmerman
ROBERT H. ZIMMERMAN
9 Attorneys for Defendant ENLOE MEDICAL
CENTER
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01305254.WPD 5
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 6 RE QUESTIONING MANDATED
REPORTERS
1 Proof of Service by Electronic Transmission - Civil
2 [Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules
3 10.503, 2.100-2.119, 2.251]
4 I, Lynette F. Esquivel, declare:
5 At the time of service, I was over 18 years of age and not a party to this action. My
6 business address is: 400 University Avenue, Sacramento, California 95825.
7 On December 8, 2020, I served the following documents:
8 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 6 RE
9 QUESTIONING MANDATED REPORTERS
10 By e-mail or electronic transmission: Based on a court order or an agreement of
11 the parties to accept service by e-mail or electronic transmission, I caused the documents
12 to be sent to the persons at the e-mail addresses listed below. I did not receive, within
13 a reasonable time after the transmission, any electronic message or other indication that
14 the transmission was unsuccessful.
15 Attorney Representing Phone/Fax/E-Mail
16 Sean R. Laird Plaintiffs PHONE: 916-441-1636
The Law Firm of Sean R. Laird FAX: 916-760-9002
17 805 16th Street EMAIL:
Sacramento, CA 95814 seanlairdlaw@gmail.com
18
19
I declare under penalty of perjury, under the laws of the State of California, that the
20
foregoing is true and correct, and that this declaration was executed on December 8,
21
2020, at Sacramento, California.
22
23
/s/ Lynette F. Esquivel
24 Lynette F. Esquivel
1579-12195
25
26
27
28
Preview
1 ROBERT H. ZIMMERMAN, BAR NO. 84345 SCHUERING ZIMMERMAN & DOYLE, LLP 2 400 University Avenue Sacramento, California 95825-6502 12/8/2020 3 (916) 567-0400 FAX: 568-0400 4 5 Attorneys for Defendant ENLOE MEDICAL CENTER 6 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 PATSY NEWTON, individually; HAROLD ) NO. 20CV01091 NEWTON, individually; SUZANNE ) 11 BOLDEN, individually, ) Assigned to Judge Tamara L. Mosbarger ) for All Purposes 12 ) ) DEFENDANT'S OPPOSITION TO 13 Plaintiffs, ) PLAINTIFF'S MOTION IN LIMINE NO. 6 ) RE QUESTIONING MANDATED 14 vs. ) REPORTERS ) 15 ENLOE MEDICAL CENTER; and DOES 1 - ) Date: February 4, 2021 50, et al., ) Time: 1:30 p.m. 16 ) Dept: 1 ) 17 Defendants. ) Action Filed: May 29, 2020 ______________________________________ ) Trial Date: February 8, 2021 18 19 Defendant ENLOE MEDICAL CENTER hereby opposed plaintiffs’ motion in limine 20 no. 6. to preclude any questions or answers regarding certain mandated reporters not 21 reporting suspected elder abuse relating to Ms. Newton and submits the following 22 memorandum of points and authorities. 23 I. 24 INTRODUCTION 25 Plaintiffs’ Motion in Limine No. 6 asks this Court to precluded defense counsel from 26 posing questions or seeking answers regarding certain individuals, who are required by 27 law to report incidents of elder abuse, failed to do so related to Ms. Newton. Plaintiffs 28 argue that many care providers, who are mandated reporters, lack the knowledge and 01305254.WPD 1 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 6 RE QUESTIONING MANDATED REPORTERS 1 training of what it takes to be a mandated reporter and are not fully aware of their 2 responsibilities under California Welfare and Institutions Code §15360. Plaintiffs seek to 3 set aside the questions because they feel the information is not relevant to this case. 4 However, plaintiffs’ position related to any mandated reporters failure to report elder 5 abuse is flawed and instead is directly applicable to his case as plaintiffs’ complaint 6 identified an elder abuse cause of action. Therefore, plaintiffs’ motion should be denied. 7 II. 8 ARGUMENT 9 A. Plaintiffs Mischaracterize the Relevance of Questions and Answers Related to Certain Mandated Reporters 10 11 Plaintiffs have made their elder abuse claims the centerpiece of their litigation in 12 this matter by making elder abuse the first cause of action in the complaint. Plaintiffs 13 claim that defendant recklessly neglected Ms. Newton and in the same breath then try to 14 argue that questions and answers related to other mandated reporters’ failure to report 15 any “elder abuse” by defendant is not relevant. Evidence Code §351 states “Except as 16 otherwise provided by statute, all relevant evidence is admissible.” 17 Relevant evidence includes evidence “having any tendency in reason to prove or 18 disprove any disputed fact that is of consequence to the determination of the action.” 19 (Evidence Code §210.) In this case the evidence is directly related to the observations, 20 impressions and state of mind of many witnesses, with medical training, who observed 21 Ms. Newton and the care and services she received from defendant. Additionally, case 22 law supports defendant’s right to disprove a plaintiff’s claim. In Potter v. Firestone (1993) 23 6 Cal.4th 965, the court admitted evidence of smoking by the plaintiff, holding that such 24 evidence was relevant to whether the plaintiff’s alleged fear of developing cancer as a 25 result of exposure to carcinogens due to the defendant’s conduct was reasonable and/or 26 genuine. The court specifically held, “If a plaintiff had smoked heavily for 20 years without 27 fearing cancer, the trier of fact may consider that evidence in assessing the legitimacy of 28 the plaintiff’s fear of cancer claim.” (Id., at pgs. 1011-12; see also generally Boo v. San 01305254.WPD 2 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 6 RE QUESTIONING MANDATED REPORTERS 1 Francisco Terminal Rys. (1920) 182 Cal. 93.) 2 As an example of the relevance of the evidence, to prove neglect in an elder abuse 3 case, a plaintiff must establish a standard distinct from professional negligence. Neglect 4 involves not the “undertaking of medical services, but the failure to provide medical 5 care.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) To ensure that 6 instances of elder abuse are reported, the government has taken a very firm stance on a 7 mandated reporter’s failure to report. Welfare and Institutions Code §15630(h) makes a 8 mandated reporter’s failure to report crime punishable by incarceration and a fine. 9 Specifically, that Section states: 10 Failure to report, or impending or inhibiting a report of, physical abuse, as defined in Section 15619.63, 11 abandonment, abduction, isolation, financial abuse, or neglect of an elder or dependent adult, in violation of this 12 section, is a misdemeanor, punishable by not more than six months in the county jail, by a fine of not more than one 13 thousand dollars ($1,000), or by both that fine and imprisonment. 14 15 The Section goes on to describe a more significant penalty for willful failures to report 16 further demonstrating California’s commitment to reporting elder abuse. 17 Therefore, if Ms. Newton or any other person had told any mandated reported of 18 any alleged elder abuse, the mandated reporter’s failure to report the alleged abuse 19 would have been a crime. Therefore, the mandated reporter’s failure to report the abuse 20 is entirely relevant to Ms. Newton’s claims. It may be that a mandated reporter did not feel 21 that the information warranted reporting the elder abuse — certainly this would undercut 22 plaintiff’s neglect claim. Moreover, if the mandated reporter also had the opportunity to 23 treat Ms. Newton and found no evidence of elder abuse – this again would be completely 24 relevant to an essential element of neglect and therefore wholly relevant in the matter. 25 Accordingly, questions or answers related to the failure to report are essential to the 26 presentation of evidence in this matter. 27 As a fallback argument, plaintiffs seek to exclude any questions and answers 28 regarding a mandated reporter’s failure to report because the information would be more 01305254.WPD 3 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 6 RE QUESTIONING MANDATED REPORTERS 1 prejudicial than probative (citing Evidence Code §352.) In support of their position 2 plaintiffs explain that not every mandated reporter necessarily understands what he or 3 she must do in a role of a mandated and therefore any failure to report could have been 4 based on a misunderstanding of the law. Moreover, plaintiffs claim that the mixed 5 messages the jury may receive from different mandated reporters relating to elder abuse 6 could detract from other evidence before the jury. Plaintiffs’ positions are not valid. 7 As an initial matter, it is a crime to not report suspected elder abuse. There is no 8 provision in the statute allowing individuals to escape liability for failure to report because 9 they did not know or understand the law. Ignorance of the law is no excuse. This is 10 similar to fighting an excessive speeding ticket because you were ignorant as to the speed 11 limit. Plaintiffs cannot, in good faith, stand behind the position that questions or answers 12 related to certain mandated reporters because the mandated reporters were unaware of 13 the legal requirements to report suspected elder abuse. A reporter’s ignorance is simply 14 no excuse. Moreover, plaintiffs’ counsel can cross examine a witness on their 15 understanding of law and why he or she did not report suspected elder abuse as it 16 pertains to Ms. Newton. 17 As to the issue of the mixed messages from the mandated reporters, as noted 18 above, the law is clear as to what constitutes elder abuse and is clear as to who is 19 required to report elder abuse and this information is very much probative of the claims 20 and defenses of the parties to the action. It is in the province of the jury to decide what 21 evidence they understand and choose to believe in deciding the case. Whether a 22 mandated reporter – who is required by law to report suspected elder abuse – failed to 23 report the alleged abuse is very much relevant to the matter before this court and is 24 probative to the claims and defenses of the parties. Plaintiffs simply cannot seek to 25 exclude any evidence because it may hurt their ability to prevail on their claims. 26 There is no basis for an order that would preclude the defendant from asking 27 questions or seeking answers regarding certain mandated reporters’ suspected elder 28 abuse. Therefore, plaintiffs’ motion must be denied. 01305254.WPD 4 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 6 RE QUESTIONING MANDATED REPORTERS 1 III. 2 CONCLUSION 3 For the foregoing reasons, defendant respectfully requests that plaintiffs’ motion 4 in limine be denied. 5 Dated: December 7, 2020 6 SCHUERING ZIMMERMAN & DOYLE, LLP 7 8 By /s/ Robert H. Zimmerman ROBERT H. ZIMMERMAN 9 Attorneys for Defendant ENLOE MEDICAL CENTER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 01305254.WPD 5 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 6 RE QUESTIONING MANDATED REPORTERS 1 Proof of Service by Electronic Transmission - Civil 2 [Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules 3 10.503, 2.100-2.119, 2.251] 4 I, Lynette F. Esquivel, declare: 5 At the time of service, I was over 18 years of age and not a party to this action. My 6 business address is: 400 University Avenue, Sacramento, California 95825. 7 On December 8, 2020, I served the following documents: 8 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 6 RE 9 QUESTIONING MANDATED REPORTERS 10 By e-mail or electronic transmission: Based on a court order or an agreement of 11 the parties to accept service by e-mail or electronic transmission, I caused the documents 12 to be sent to the persons at the e-mail addresses listed below. I did not receive, within 13 a reasonable time after the transmission, any electronic message or other indication that 14 the transmission was unsuccessful. 15 Attorney Representing Phone/Fax/E-Mail 16 Sean R. Laird Plaintiffs PHONE: 916-441-1636 The Law Firm of Sean R. Laird FAX: 916-760-9002 17 805 16th Street EMAIL: Sacramento, CA 95814 seanlairdlaw@gmail.com 18 19 I declare under penalty of perjury, under the laws of the State of California, that the 20 foregoing is true and correct, and that this declaration was executed on December 8, 21 2020, at Sacramento, California. 22 23 /s/ Lynette F. Esquivel 24 Lynette F. Esquivel 1579-12195 25 26 27 28