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COLIN C. MUNRO (Bar No,: 195520)
CHRISTOPHER J. WEBER (Bar No.: 233998)
CARLSON, CALLADINE & PETERSON LLP
353 Sacramento Street, 16th Floor
San Francisco, CA 94111
Telephone: (415) 391-3911
Facsimile: (415) 391-3898
Attorneys for Defendants
TAXI EQUIPMENT LEASING LLC and YELLOW CAB
COOPERATIVE, INC.
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
01/05/2016
Clerk of the Court
BY:RONNIE OTERO.
Deputy Clerk
D, DOUGLAS SHUREEN (Bar No. 124613)
McMILLAN & SHUREEN LLP
50 Santa Rosa Avenue, Suite 200
Telephone: (707) 525-5400
Facsimile: (707) 576-7955
Attorneys for Defendant/Cross-Complainant
JOEL ENRIQUE ANDINO SANCHEZ
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
IDA CRISTINA CRUZ FUA, CASE NO.: CGC-11-515542
Plaintiff, DEFENDANTS’ JOINT OPPOSITION TO
PLAINTIFF’S MOTION FOR NEW TRIAL;
v. MEMORANDUM OF POINTS AND
AUTHORITIES
JOEL ENRIQUE ANDINO SANCHEZ, and
individual; CAROLINE MILLER, an
individual; TAX] EQUIPMENT LEASING Date: January 12, 2016
LLC, a Limited Liability Company; SAN Time: 9:30 a.m.
FRANCISCO INDEPENDENT TAXI Dept: 608
ASSOCIATION, a Corporation; YELLOW
CAB COOPERATIVE, INC., a Corporation;
and DOES 1 through 50, Inclusive,
Defendants.
Case No.: CGC-11-515542
DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIALTABLE OF CONTENTS
I, INTRODUCTION
Il, ARGUMENT...
A. PlaintifPs Motion is Defective Because She Fails to © Support H Her ems on the
Minutes of the Court... edited WANNER A ATI Nephi ota TAS sivniavitenanrscoarsavscaed
B. The Court Appropriately Limited the Evidence Regarding Future Earnings to
Admissible Evidence 3
1. The Court’s Evidentiary Rulings. mind
2. Evidence that is Speculative or that Lacks Foundation is Inadmissible .........::6s0se00¥ 4
C. The Cases Cited by Plaintiff do not >t Support P Plaintiff's neers that ec Sreculonve
Evidence is Admissible...
D. The Evidence of Plaintiff's Future Loss of Earnings Was in Substantial Conflict;
Plaintiff Cannot Show that the Jury Clearly Should Have Reached a Different
Verdict i... asisuissnssitvessevisvevecesvevenssscuaduaisvsinciniesunressanvedibensscetbasdtsevdts oasbaveasisaasnaisntinarieabei arenes 8
1. Defendants’ Evidence, Which Plaintiff does not Mention, ». Supported th the re Tury’s s
Verdict
2, The Jury Was Not Bound by the Opinion of Plaintiff's Expert ........esntrnnenn lO
i Case No.: CGC-11-515542
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIALTABLE OF AUTHORITIES
Page(s
Cases
Abbott v, Taz Express
61 Cal. App.4th 853 (1998)..ssicssssessssssvesssssvesssssuusescsensssccensermectesteevecsesseseennvendearnenaierntensereascsssnes 9
Barnett v. Keilig
170 Cal.App. Ba 177 (1959)... anscesenguosaneaaneudeanpesssnsonuneespqneenecenenanaee mnaenatmmennstoadsinteadnotaveeisvah B
Borger v. Dept. of Motor Vehicles
192 Cal. App.4th 1118 (201 ]).cscssssssssscsesssevstotacssssesinsscnsnesisanssussesnenaseensetensneesnneeaeetesessenay 5
Bushling v. Fremont Medical Center
117 Cal. App.4th 493 (2004)
California Shoppers, Inc. v. fone Globe Ins. Co.
175 Cal.App.3d 1 (1985)... Taelcalesraleal lalalelatebellalagleatlenatalelaalsahectalaaeiaaeam ea ice
Connolly v, Pre-Mixed Concrete te Company |
49 Cal.2d 483 (1957)... a issvbhsbeeeabbcvessttina sab bestaiiesbovdtbaaivanivs csunaiceasaenaeE CeO
Dominguez v. Pantalone
212 Cal. App.3d 201 (1989)...ssssscsescssescusesssnerssueecsnsesssessesnvesesntscnuersancssvenssanmeansnasssaiesessneiessnies B
Fein v. Permanente Medical Group
Gargir v. B’Nei Akiva
66 Cal. App.4th 1269 (1998) ssccsusessesssssvsrsvssceuesssnssiensvssestrsveecovinseseseinessseecnisnisccssuentesiuensenens 7
Gersick v. Schilling
97 Cal. App.2d 641 (1950) .sesscsessssonesssssnsessesssuseensesnsninasssneesnsquasesiseenntsssinsseaseseiseenie 9
Green v, Soule
145 Cal. 96 (1904) veces
Howard v, Owens Corning
72 Cal. App th 621 (1999) .ccssscsoscnststnseesensusnanennanaeuneneeunnenanninnanennnneenen 10
In re Lockheed Litigation Cases
115 Cal. Appp.4th 558 (2004) sssssststousssnsasstvtntsenssesninsnionssotapaniveanssviatetntneee 5
Locksley v. Ungureanu
178 Cal, App.3d 457 (1986)...n0rsoneiidiurprngntisthedit anni iiisiamnoNnuanelnmmaumiat 9
Sargon Enterprises, Inc. v. University ao ‘Southern ee varie
55 Cal.4th 747 (2012)... avian ai soveceseceneceesesssessucesecevesnneesvucnsansvecssansnavensnensneese 4
Tibor v. Superior Court
52: CaLApp 4th 1359-(1997) ceicsssssizassecacecnsenecuishceisusunnisrcansas ciesenoitinuciacssinencriea
Toscano v. Greene Music
124 Cal. App.4th 685 (2004)...scccesssessesessnessosseeesnseenneecsnnessttscesnuneensueesenesnnesnnnvessesnstoansssesnsiaanenscens 5
ii Case No.:_ CGC-11-515542
DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIALWall Street Network, Ltd. v. New York Times Co.
164 Cal. App.4th 1171 (2008) .ccssisssssssnesrsrsussneentansnsssaenenseuenaenennuenananennenanneneine 2
Statutes
Code of Civil Procedure § 657 ..csssssssessssnmensessusrscenasseserecsssereesracsrecrnsesneesniesnstinnnennennaerenesnan 8
Code: of Civil Procedure § 658......c:.sssscscsessenebitssissstsocnssisinavenssossesussssevesiananssiescvsvensreetsssserecsssesenaneante 2
Code of Civil Procedure § 660.
Evidence Code § 720.....:scsssssssscsssessssessseessstirernstshenssernetensustestveesavepsbnecnisinisnilesudasibicccnsasecsaserssseasonty ©
Evidence Code § 801 ...sscsssssssesnsesssesnsssssessesssssssecrvecarecnsarssupienapqnintsecesanesassavensussnnessnseanenanecsnensnatees 5
Evidence: Code §°802........sssessssressseosasesssesettiiosaciaontsostinntaysossansennicennindcenienentseesahtortanesnanteenonneennernsater 5
Evidence Code § 803
ili Case No.:_ CGC-11-5155421 INTRODUCTION
This case arises from a traffic collision involving a taxi driven by Defendant Joel Sanchez.
Plaintiff was a passenger in Mr. Sanchez’s taxi and claims personal injuries when Mr. Sanchez
rear-ended a vehicle. The jury returned a verdict finding that Defendant Sanchez was responsible
for Plaintiff's injury, and that Defendant Yellow Cab Cooperative, Inc, (“Yellow Cab”) was
vicariously liable as the ostensible employer of Mr. Sanchez.
Plaintiff now seeks a new trial on the issue of damages, contending that the jury’s award of
$4,165,000 for loss of future income capacity was inadequate. Plaintiff also seeks a new trial on
grounds that there was a purported error in law regarding rulings limiting Plaintiff's experts’
opinions. As set forth more fully below, Plaintiff's arguments are without merit. There was a
significant conflict in the evidence as to the nature and extent of Plaintiffs claimed loss of
earnings. When evaluating the award against the evidence presented by Defendants, the amount
was clearly adequate. Further, Plaintiff's vague arguments concerning a supposed error in the law
are unavailing. Plaintiffs experts’ opinions were limited by the Court pursuant to well-
established basis of speculation, conjecture and lack of foundation. Plaintiff's motion for a new
trial should be denied.
I. ARGUMENT
A. Plaintiffs Motion is Defective Because She Fails to Support Her
Arguments on the Minutes of the Court
One of the bases relied upon by Plaintiff in seeking a new trial is her contention that the
jury did not hear all the evidence of her lost earnings capacity. (Memorandum of Points and
Authorities in Support of Motion for New Trial (“Plaintiff's Memo”), p. 3:14-16.) To support her
argument, Plaintiff speculates that the Court must have assumed that attorneys such as Plaintiff do
not continue working as transactional specialists at elite firms, that is, that they either leave their
law firms, stagnate or regress. (/d., p. 3:18-21.) Plaintiff fails to support her musings about what
the Court actually decided, and why, with any reference to the record or to the numerous oral
arguments that dealt specifically with the admissibility of Plaintiff's proposed testimony. Indeed,
Plaintiff's Memo is devoid of any specific reference to the many arguments in which the Court
1 7 Case No.:_ CGC-11-515542
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL27
28
made specific rulings. These arguments included the April 29, 2015 hearing on Defendants Taxi
Equipment Leasing, LLC and Yellow Cab Cooperative’s Motion in Limine No. 5 to Preclude
Patricia Sullivan and Robert Johnson’s Opinions Regarding Plaintiff's Future Loss of Earnings
(the “Motion in Limine”); the oral arguments during trial on May 20, 2015, May 28, 2015, and
June 4, 2015; and the argument regarding jury instructions on June 18, 2015. In fact, Plaintiff's
Memo does not cite to a single ruling or order of this Court despite the fact that Plaintiff alleges
that the Court’s rulings limiting evidence were erroneous.
Plaintiff's failures to cite to the record or to discuss the Court’s actual rulings are
procedurally fatal to her attempt to seek a new trial. California Code of Civil Procedure § 658
specifically requires Plaintiff to support her motion on the minutes of the court. Plaintiff must also
refer to the pleadings and orders of the court on file, to the documentary evidence offered at trial
and to the report of the proceedings on trial taken by the recorder (or to the certified transcript).
(Cal. Code Civ. Proc. § 660.) New trial motions are creatures of statute and the procedural steps
for making and determining those motions are mandatory and must be strictly followed. Wall
Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1193. Thus, to the
extent that Plaintiff complains about an order of the Court, Plaintiff has an obligation to
specifically identify it and to state precisely why that order was incorrect. Plaintiff has failed to do
that and as a result has left Defendants and this Court in the dark about the specific rulings or
orders she is complaining about. The Motion for New Trial should be summarily denied on that
basis.
Moreover, Plaintiff's tactic of refusing to identify the key rulings of the Court is
misleading and disingenuous. The Court made specific rulings limiting some of Plaintiff's
proffered evidence on the grounds that the evidence was speculative and that Plaintiff's experts
were unqualified to render opinions about speculative future earnings. The Court referenced
specific cases and facts, and identified his rationale in detail. (See, for example, the Court’s ruling
on June 4, 2015 regarding earnings capacity. (Declaration of D. Douglas Shureen (“Shureen
Decl.”), §2, Exh. 1.) For Plaintiff to say that “[t]he only apparent reason for excluding such
evidence is the view that attorneys such as Fua do not continue working as transactional specialist
2. Case No.:_ CGC-11-515542
DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIALat elite firms, i.c., they either leave their prestigious law fires or stagnate or regress in their
careers” (Plaintiff's Memo, p. 3:18-21), is deceptive, misleading and improper.
B. The Court Appropriately Limited the Evidence Regarding Future
Earnings to Admissible Evidence
1. The Court's Evidentiary Rulings
On several occasions the Court ruled that some of the evidence Plaintiff wanted to
introduce was not admissible because it was, among other things, highly speculative. For example,
on April 29, 2015, after hearing argument on the Motion in Limine, the Court ruled that Plaintiff
could not introduce expert testimony that Plaintiff could have been a partner or general counsel of
a corporation. The Court noted that such testimony would be highly speculative. In its ruling the
Court likely considered the deposition testimony of Ivan Gaviria, Plaintiffs supervising attorney
at the Gunderson firm, that it would have been speculative to say that Plaintiff would ever be a
partner at the firm. The Court also noted such future awards as stock options and bonuses were
also largely speculative and subject to too many variables. (Shureen Decl., §3.)
Later, on May 28, 2015, in oral argument prior to the trial testimony of Plaintiff's expert,
Dr. Sullivan, Plaintiff renewed her request that her experts be allowed to testify that Plaintiff could
have been a partner at a major law firm or a general counsel at a major corporation. (Shureen
Decl., §4, Exh. 2.) In particular, Plaintiff sought to introduce the testimony of Dr. Sullivan and
another witness, Gina Marek, regarding the valuation of a partnership at the Gunderson firm or
some other top tier Silicon Valley law firm. (/d., pp. 1-2.) The Court denied the Motion. The
Court noted that it would be a stretch to say that Plaintiff would one day be a partner. (/d., p. 8:1-
3.) The Court further noted that ten months (of employment at the Gunderson firm) is not enough
for anyone to guess or speculate about whether Plaintiff has the capacity to be a partner. (/d,, p.
9:25-27.) In its ruling the Court stated that such evidence would be speculative and that there
were too many variables to consider with respect to Plaintiff's ability to become a partner. (Jd., p.
13:15-18.) The Court acknowledged such complicating factors as the brevity of Plaintiff's career
before the accident, her expressed concern about the number of hours she was required to work,
and that she might have decided not to practice law and do something else instead. (/d., p. 13:14-
: 3 Case No.:_ CGC-11-515542
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL,14:25), Finally, the Court ruled that Dr. Sullivan did not know enough to make a reliable
evaluation or opinion as to what Plaintiff's compensation would be. (/d., p. 14:26-15:5,)
The Court again addressed the issue on June 4, 2015 after oral argument before the
testimony of Dr. Johnson, the economist. (Shureen Decl., 42, Exh. 1, pp. 14-35) Plaintiff's
counsel again argued that Plaintiff's earnings capacity was far in excess of her actual earnings and
that Dr. Johnson should be allowed to testify that Plaintiff had the capacity to earn sums far in
excess of her present earnings. (/d., p. 17:15-19:18.) After argument, the Court ruled that Dr.
Johnson would not be allowed to testify that Plaintiff had the capacity to earn a salary in excess of
the fourth year Gunderson salary scale as reflected in Exhibit 28. (/d., p. 29:20-30:9.) This ruling
was based, in part, on Mr. Gaviria’s testimony that it would have been speculation for him to say
that Plaintiff would have remained employed as an associate at the Gunderson firm for 5 years.
(id. p. 24:5-27:18.) (See Shureen Decl., 5, Exh. 3, Gaviria testimony, p. 97:11-14.) (Mr. Gaviria
also testified that when the firm looked at the question of the average associate stay, they came to
the conclusion that it was about three years. (/d., Gaviria testimony, p. 23:4-15.)
In the June 4, 2015 hearing, the Court clearly and specifically laid out his rationale for
excluding expert testimony regarding speculative earnings after four years as an associate at the
Gunderson firm. (/d., p. 31:14-32:19.) The Court appropriately exercised its discretion to limit
the evidence to admissible, non-speculative evidence. (/d.) Moreover, the Court pointed out that
the Gunderson salary schedule (Exhibit 28) was already in evidence and that jury could consider
it. (Id., p. 33:3-10.) This fact was acknowledged by Plaintiffs counsel in the same argument. (/d.,
p. 33:20-24.)
Later, at oral argument on June 17, 2015, Defendants objected to Plaintiff's proposed
argument to the jury that her lost earnings capacity was $20,000,000. The Court ultimately
allowed Plaintiff to make such an argument, subject to reasonable limitations, citing jury
instruction CACI 3309D, and the cases cited in the commentary thereto.
2. Evidence that is Speculative or that Lacks Foundation is Inadmissible
On several occasions during trial the Court noted its responsibilities under the Sargon
decision (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747) to
4. Case No.: CGC-11-515542
DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIALserve as an evidentiary gatekeeper. In Sargon, the plaintiff's expert attempted to testify that
plaintiff's lost profits were in a range starting with hundreds of millions of dollars. Plaintiffs pre-
injury net profit was $101,000. (Jd., p. 753.) The court exhaustively reviewed California law and
concluded that the proposed evidence was inadmissible. The court addressed Evidence Code §§
801 and 802’s requirements and concluded that the trial court acts as a gatekeeper to exclude
speculative or irrelevant expert opinion. (/d, p. 770.) Under California law, to be admissible an
expert must base his or her opinion on information considered reliable. Where an expert’s opinion
is based on assumed and/or conjectural information, it does not rise to the level of admissible
evidence and may be excluded on that basis. (Borger v. Dept. of Motor Vehicles (2011) 192
Cal.App.4th 1118, 1122 (“Where an expert bases his conclusion upon assumptions which are not
supported by the record, upon matters which are not reasonably relied upon by other experts, or
upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary
value.” (internal quotations omitted)); (see also Bushling v. Fremont Medical Center (2004) 117
Cal.App.4th 493, 510 (“[E]xpert opinion may not be based on assumptions of facts that are
without evidentiary support or based on factors that are speculative or conjectural, for then the
opinion has no evidentiary value and does not assist the trier of fact.”); In re Lockheed Litigation
Cases (2004) 115 Cal.App.4th 558, 564 (noting that “the matter relied on must provide a
reasonable basis for the particular opinion offered, and that an expert opinion based on speculation
or conjecture is inadmissible.”)). As noted by the cited authority, the defect in expert opinion
premised on speculative assumptions goes to the opinion’s fundamental foundation and
admissibility, and NOT its weight. It must be excluded. Evid. Code, § 803 (“The court may, and
upon objection shall, exclude testimony in the form of an opinion that is based in whole or in
significant part on matter that is not a proper basis for such an opinion.” (emphasis added).
California courts that have considered similar future lost income opinions that were
premised on nothing more than assumption have readily excluded the proffered opinion. (See,
e.g., Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 696.) In Toscano the court vacated
the judgment below for lost future earnings, finding that “even giving deference to the trial court’s
ruling and drawing all inferences in [plaintiff's] favor, the evidence was too speculative to lend
7 : 5 _Case No.: CGC-11-515542
DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIALsupport to the trial court’s award of [plaintiff's] lost future earnings... .” (Id. at 695-69.) The
reason for this is that the existence of the future earnings at issue was based entirely on the opinion
of an expert who “simply assumed” the employment upon which she based her opinion. (/d. at
696.) “Although the fact of [plaintiff's] damage was established, [the expert’s] conclusions as to
the extent of [plaintiff's] lost employment were wholly conjectural. (/d. (emphasis in original).
“An expert’s opinion must not be based upon speculative or conjectural data.” (Jd.) This is the
exactly the type of evidence Plaintiff asked the Court to have admitted by expert testimony and
evidence of other people’s earnings.
Further, pursuant to Evidence Code § 720, an expert is qualified as such only if the expert
has special knowledge, skill, experience, training or education sufficient to qualify him as an
expert on the subject to which his testimony relates (Evidence Code § 720 (emphasis added).) An
expert’s opinion is defective if it fails to show the expert’s skill, training, or experience to support
the opinion. (Tibor v. Superior Court (1997) 52 Cal.App.4th 1359, 1364 fn 1.) Moreover, the fact
that a purported expert may be qualified in one field vaguely related to another does not mean that
he is qualified in that other field. (California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175
Cal.App.3d 1, 66-67.) Here, neither of the experts Plaintiff intended to provide testimony about
her future earnings had the skill, experience or training to testify regarding the course of Plaintiff's
legal career, advancement, partnership prospect or possible in-house counsel employment and
their testimony was therefore correctly excluded. And, as noted by the Court on multiple
occasions, such testimony would have nevertheless been completely speculative and conjectural.
Cc The Cases Cited by Plaintiff do not Support Plaintiff's Theory that
Speculative Evidence is Admissible
The cases cited by Plaintiff do not support her arguments. Fein v. Permanente Medical
Group (1985) 38 Cal.3d 137 merely acknowledges that lost future earnings are a proper element of
damages. Jd. That issue is not in dispute; the Judgment includes an award for that loss. Connolly
y, Pre-Mixed Concrete Company (1957) 49 Cal.2d 483, adds nothing to Plaintiff's argument. In
Connolly, the defendants argued that a future earnings award was excessive. The Court merely
held that loss of earnings power is an element of damages and that such loss can be inferred from
a 6 Case No.: CGC-11-515542
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIALthe nature of the injury. There was no discussion of the admissibility of evidence or speculation,
and no evidence that defendants had objected to the expert witness testimony offered. Connolly is
irrelevant to this case.
Plaintiff's reliance on Gargir v. B’Nei Akiva (1998) 66 Cal.App.4th 1269, 1282 is likewise
misplaced. In Gargir, the question framed was whether the court erred in submitting a jury
instruction (BAJI No, 14.12) about the plaintiffs right to recover damages for lost earnings
capacity because there was no evidence to support the claim, (/d., p. 1272.) The plaintiff was a
young student injured in a skiing accident. (/d., p. 1282.) She had intended to pursue a career in
special education and sought a jury instruction that would allow the jury to award her damages for
her lost earnings capacity. The court held that she was not required to present expert testimony
about the loss of future earnings and that such loss may be inferred from the nature of her injury.
(Id) In our case, however, at least four experts provided exhaustive testimony about what work
Plaintiff could do after her injury, how her injury affected her ability to work, and what she could
have earned had she been able to continue working as a transactional attorney. The Court allowed
all of that testimony, and gave the jury an instruction (CACI 3903D) similar to the BAJT 14.12 |
instruction given in the Gargir case, as requested by Plaintiff. In short, the Court here fully |
complied with the holding in the Gargir case.
Plaintiff nevertheless seeks to expand on a comment in Gargir that the test is ‘what she
could have earned.’ (Plaintiff's Memo, p. 3:3-4.) Plaintiff takes this statement out of context, and
argues that it allows her to- present expert witness testimony unrestrained by other evidentiary
rules. She is wrong. The reference in Gargir was intended only to reflect the fact that people who
do not have established careers, such as students or apprentices, should not be foreclosed from
proving that had they not been injured they would have been able to pursue their careers. Jd., p.
1280 (“[t]he important distinction just discussed is particularly applicable when the plaintiff is a
student or an apprentice.”) (emphasis in original). Gargir does not give Plaintiff license to
speculate that she could have eared multiples of what she was actually earning simply because
she may, or may not, have had a bright future. The case does not allow her to introduce
speculative evidence that she ‘could have been’ a partner or the general counsel of a major
7 Case No: CGC-11-515542
DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIAL27
28
corporation, or that she could have earned the salaries that high-level associates at the Gunderson
firm earn.
The principles discussed in the cases cited by Plaintiff were fully addressed by the Court in
the trial of this matter. Plaintiff introduced evidence of what she might have earned had she not
been injured. Expert witnesses were used to present this evidence. The Court gave the jury
instruction Plaintiff sought, and allowed Plaintiff to argue damages in excess of reasonably certain
earnings, over Defendants’ objections. Plaintiff introduced exhibit 28, which set forth the earning
schedule for Gunderson attorneys through their ninth year of employment. Plaintiff's counsel was
allowed to ask the jury for $12,000,000 in his closing argument. The jury made a decision based
on all of the evidence and awarded Plaintiff $4,165,000 in lost earnings capacity, There was no
error. The Court correctly exercised its responsibility and discretion to exclude speculative
evidence, both expert and percipient, about future earnings far in excess of Plaintiff's earnings at
the time of the accident.
D. The Evidence of Plaintiff’s Future Loss of Earnings Was in Substantial
Conflict; Plaintiff Cannot Show that the Jury Clearly Should Have
Reached a Different Verdict
The Court does not disregard the jury's verdict or grant a new trial simply because it would
have reached a different result if the litigation had been decided by a bench trial. (Dominguez v.
Pantalone (1989) 212 Cal.App.3d 201, 215). Instead, a finding of insufficiency of the evidence is
only supported if “there is an absence of evidence or that the evidence received, in the individual
judgment of the trial judge, is [clearly] lacking in probative force to establish the proposition of
fact to which it is addressed.” (/d.; See Also Code Civ Proc § 657). The Court “must be clearly
satisfied that the verdict is wrong.” (Green v. Soule (1904) 145 Cal. 96, 103). Also, “abuse of
discretion in denying a motion for new trial on the ground of the inadequacy or excessiveness of
damages is not shown unless it appears that the verdict is the result of passion or prejudice.”
(Barnett v. Keilig (1959) 170 Cal.App.2d 177, 179-180).
In Dominguez, supra, 212 Cal.App.3d 201, the trial court declined to grant a motion for a
new trial even though the court would have come to the opposite verdict because there was
“sufficient credible evidence to support the verdict, and that the jury was reasonable in believing
. a 8 Case No; CGC-11-515542
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIALthe witnesses it apparently had believed in reaching its verdict.” (Id. at 216). Similarly, in
Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 462-63, the Court weighed the evidence
presented at trial and denied a motion for new trial because the Court was found “that the evidence
that was presented was susceptible of the returned verdict”. Here, there was sufficient credible
evidence to support the jury verdict award of $4,165,000 for Plaintiff's loss of earnings capacity.
1, Defendants’ Evidence, Which Plaintiff does not Mention, Supported the
Jury’s Verdict
Plaintiff appears to regard Mr. Johnson’s analysis as the benchmark against which the
amount of the jury's award must be evaluated. However, Plaintiff ignores Defendants’ evidence,
which established that the present cash value of all of Plaintiff's likely future loss of earnings fell
within the range of $3.9 million to $4.6 million. Defendants’ vocational rehabilitation expert,
Timothy Farrell, provided the jury three scenarios for future income loss, including whether
Plaintiff would have continued in her career as an associate, went “in-house,” or left the legal
profession entirely. These scenarios were then evaluated and quantified by Defendants’ retained
economist, Phillip Allman, Ph.D., and reduced to present value.
At trial, the jury was presented with three options by Defendants’ experts: (1) future
earnings based upon average attorneys’ salaries in the Bay Area - $4,2 million; (2) future earnings
based upon employment at Gunderson Detmer and then transitioning to an in-house corporate
position - $4.6 million; and (3) future earnings based upon employment at Gunderson Detmer and
then transitioning to a smaller firm - $3.9 million. (See Weber Decl., Exhibit A [Trial Exhibits
385, 386 and 387, consisting of the three future loss scenarios]). These amounts were then reduced
to account for mitigation based upon Plaintiff's then-current employment options, including future
employment as a lawyer, claims adjuster, compliance officer, or loan officer (See Exhibit “A” to
Weber Decl.).
A conflict in the evidence as to the nature and extent of Plaintiff's injuries is sufficient to
support the jury’s finding on damages and the trial court’s decision that the damages are adequate
as a matter of law. (Gersick v. Schilling, (1950) 97 Cal.App.2d 641, 648). As noted in Abbott v.
Taz Express (1998) 61 Cal.App.4th 853:
9 Case No: CGC-11-515542
DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIALDamages, even economic damages, are difficult to measure in personal injury
cases, There may be disputed facts regarding the amount of medical expenses or
lost wages, or disputed inferences about the probable course of events such as the
length of incapacitation or whether a continuing disability will worsen, plateau, or
improve.
(Id, at 856-857).
Here, Plaintiff's future employment prospects, both in terms of her ability to return to work
in light of her injury, as well as her earnings capacity without the injury, were matters of
significant dispute. Several witnesses, including Plaintiff's former supervising partner, Plaintiff's
former co-worker, and both parties’ vocational and economics experts testified at length to these
issues. Measured against Defendants’ evidence, rather than Mr. Johnson’s testimony, the jury’s
$4,165,000 million award for loss of future earnings was plainly adequate.
2. The Jury Was Not Bound by the Opinion of Plaintiff's Expert
Contrary to what Plaintiff suggests in her moving papers, the jury was not required to
credit all or any of Mr. Johnson’s cost projections. Indeed, the jury was provided CACI 219
(Expert Witness Testimony). This jury instruction enabled the jurors to determine the believability
of a witness by considering any matter which has a tendency to prove or disprove the truthfulness
of his or her testimony, specifically including the demeanor and manner of the witness, the
character and quality of the testimony, the existence or non-existence of any fact testified to by the
witness, and the existence of bias or motive. Thus, a jury is not bound by an expert’s opinion.
Indeed, a “jury may entirely reject the testimony of a plaintiff's expert, even where the defendant
does not call any opposing expert and the expert testimony is not contradicted.” (Howard v,
Owens Corning (1999) 72 Cal.App.4th 621, 633).
The jury apparently agreed that evidence that Defendants’ experts’ opinions were more
credible and/or persuasive than those of Mr. Johnston. Further, the jury had reason to discount
Mr, Johnston’s cost projections. In particular, Mr. Johnston’s future loss calculations provided
for no mitigation in terms of amounts that Plaintiff could have earned by way of return to gainful
employment. By contrast, Defendants’ experts offered several such scenarios, including returning
to the practice of law and specializing in disability rights, or using Plaintiff's accounting
background and opening up the areas of being a loan or compliance officer in a corporation.
= 10 Case No.:_ CGC-11-515542
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL.Nonetheless, Plaintiff takes the position in her moving papers that because the jury awarded only
51% of the amount offered by Mr. Johnston, that the jury’s verdict is plainly inadequate. Such is
contrary to the law. Further, it fails to account for the evidence offered by Defendants as to
Plaintiff's damages claims.
UI. CONCLUSION
Consistent with the arguments and authorities set forth above, Plaintiffs motion for a new
trial should be denied.
Dated: January 5, 2016 CARLSON, CALLADINE & PETERSON LLP
COLIN C. MUNRO
CHRISTOPHER J. WEBER
Attorneys for Defendants
TAXI EQUIPMENT LEASING LLC, YELLOW
CAB COOPERATIVE, INC,
Dated: January 5, 2016 McMILLAN & SHUREEN, LLP
AA
AMA
en
By:_ Ao = =
D, DOUGLAS SHUREEN
Attorneys for Defendant/Cross-Complainant
JOEL ENRIQUE ANDINO SANCHEZ
il Case N
C-11-51554227
28
PROOF OF SERVICE
Ida Cristina Cruz Fua v. Joel Enrique Andino Sanchez, et al.
San Francisco Superior Court Case No. CGC-11-515542
I am employed in the County of San Francisco, State of California. I am over the age of 18
and not a party to the within action. My business address is 353 Sacramento Street, 16th Floor,
San Francisco, California 94111.
On January 5, 2016, I served the following documents:
1. DEFENDANTS’ JOINT OPPOSITION TO PLAINTIFF’S MOTION FOR NEW
TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES;
2. DECLARATION OF CHRISTOPHER J. WEBER IN SUPPORT OF
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL; and
3. DECLARATION OF D. DOUGLAS SHUREEN IN SUPPORT OF
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL
in the manner indicated below, on the interested parties in said action at the following addresses
(including fax numbers and email addresses, if applicable) as follows:
Todd P, Emanuel, Esq. Telephone: (650) 369-8900
Mark D, Rosenberg, Esq. Facsimile: (650) 369-8999
Emanuel Law Group Email: todd @TEinjurylaw.com
702 Marshall Street, Suite 400 Email:
Redwood City, CA 94063 Attorneys jor Plaintiff Fua
*VIA OVERNIGHT DELIVERY
David J. Cook, Esq. Telephone: (415) 989-4730
Cook Collection Attorneys Facsimile: (415) 989-04-91
A Professional Law Corporation Email: Cook@cookcollectionattorneys.com
165 Fell Street, Attorneys for Plaintiff Fua
San Francisco, CA 94102 ***VIA MAIL
D. Douglas Shureen, Esq. Telephone: (707) 525-5400
MeMillian & Shureen LLP Facsimile: (707) 576-7955
50 Santa Rosa Avenue, Suite 200 Email: doug.shureen@memillanshureen.com
Santa Rosa, CA 95404 Attorneys for Defendant Joel Enrique Andino
Sanchez
**VIA EMAIL
Robert S. Aaron, Esq. Telephone: (415) 438-7801
Aaron & Wilson, LLP Facsimil 7808
150 Post Street, Suite 400 i aaron-wilson.com
San Francisco, CA 94108 Co-counsel for Defendants Taxi Equipment
and Yellow Cab Cooperative, Inc.
***VIA MAIL
[X] (BY LEXISNEXIS FILE & SERVEXPRESS) Service was effected by causing a true and
correct copy of the documents listed above to be sent via electronic transmission through
LexisNexis File & ServeXpress to the persons at the addresses set forth above.
PROOF OF SERVICE*[X] (BY OVERNIGHT DELIVERY/COURIER) I deposited such envelope in a box or facility
regularly maintained by the express service carrier in an envelope or package designated by the
express service carrier with delivery fees provided for.
**(X] (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a Court Order or an
agreement of the parties to accept service by e-mail or electronic transmission, I caused the
documents to be sent to the persons at the email addresses listed. I did not receive, within a
reasonable time after the transmission, any electronic message or other indication that the
transmission was unsuccessful.
***TX](BY MAIL) I am “readily familiar” with the firm’s practice of collection and processing
correspondence by mailing. Under that practice it would be deposited with U.S. postal service on
that same day with postage fully prepaid at San Francisco, California in the ordinary course of
business.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on January 5, 2016, at San Francisco, California.
SHARI L. HIIBEL
PROOF OF SERVICE
Preview
COLIN C. MUNRO (Bar No,: 195520) CHRISTOPHER J. WEBER (Bar No.: 233998) CARLSON, CALLADINE & PETERSON LLP 353 Sacramento Street, 16th Floor San Francisco, CA 94111 Telephone: (415) 391-3911 Facsimile: (415) 391-3898 Attorneys for Defendants TAXI EQUIPMENT LEASING LLC and YELLOW CAB COOPERATIVE, INC. ELECTRONICALLY FILED Superior Court of California, County of San Francisco 01/05/2016 Clerk of the Court BY:RONNIE OTERO. Deputy Clerk D, DOUGLAS SHUREEN (Bar No. 124613) McMILLAN & SHUREEN LLP 50 Santa Rosa Avenue, Suite 200 Telephone: (707) 525-5400 Facsimile: (707) 576-7955 Attorneys for Defendant/Cross-Complainant JOEL ENRIQUE ANDINO SANCHEZ SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO IDA CRISTINA CRUZ FUA, CASE NO.: CGC-11-515542 Plaintiff, DEFENDANTS’ JOINT OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL; v. MEMORANDUM OF POINTS AND AUTHORITIES JOEL ENRIQUE ANDINO SANCHEZ, and individual; CAROLINE MILLER, an individual; TAX] EQUIPMENT LEASING Date: January 12, 2016 LLC, a Limited Liability Company; SAN Time: 9:30 a.m. FRANCISCO INDEPENDENT TAXI Dept: 608 ASSOCIATION, a Corporation; YELLOW CAB COOPERATIVE, INC., a Corporation; and DOES 1 through 50, Inclusive, Defendants. Case No.: CGC-11-515542 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIALTABLE OF CONTENTS I, INTRODUCTION Il, ARGUMENT... A. PlaintifPs Motion is Defective Because She Fails to © Support H Her ems on the Minutes of the Court... edited WANNER A ATI Nephi ota TAS sivniavitenanrscoarsavscaed B. The Court Appropriately Limited the Evidence Regarding Future Earnings to Admissible Evidence 3 1. The Court’s Evidentiary Rulings. mind 2. Evidence that is Speculative or that Lacks Foundation is Inadmissible .........::6s0se00¥ 4 C. The Cases Cited by Plaintiff do not >t Support P Plaintiff's neers that ec Sreculonve Evidence is Admissible... D. The Evidence of Plaintiff's Future Loss of Earnings Was in Substantial Conflict; Plaintiff Cannot Show that the Jury Clearly Should Have Reached a Different Verdict i... asisuissnssitvessevisvevecesvevenssscuaduaisvsinciniesunressanvedibensscetbasdtsevdts oasbaveasisaasnaisntinarieabei arenes 8 1. Defendants’ Evidence, Which Plaintiff does not Mention, ». Supported th the re Tury’s s Verdict 2, The Jury Was Not Bound by the Opinion of Plaintiff's Expert ........esntrnnenn lO i Case No.: CGC-11-515542 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIALTABLE OF AUTHORITIES Page(s Cases Abbott v, Taz Express 61 Cal. App.4th 853 (1998)..ssicssssessssssvesssssvesssssuusescsensssccensermectesteevecsesseseennvendearnenaierntensereascsssnes 9 Barnett v. Keilig 170 Cal.App. Ba 177 (1959)... anscesenguosaneaaneudeanpesssnsonuneespqneenecenenanaee mnaenatmmennstoadsinteadnotaveeisvah B Borger v. Dept. of Motor Vehicles 192 Cal. App.4th 1118 (201 ]).cscssssssssscsesssevstotacssssesinsscnsnesisanssussesnenaseensetensneesnneeaeetesessenay 5 Bushling v. Fremont Medical Center 117 Cal. App.4th 493 (2004) California Shoppers, Inc. v. fone Globe Ins. Co. 175 Cal.App.3d 1 (1985)... Taelcalesraleal lalalelatebellalagleatlenatalelaalsahectalaaeiaaeam ea ice Connolly v, Pre-Mixed Concrete te Company | 49 Cal.2d 483 (1957)... a issvbhsbeeeabbcvessttina sab bestaiiesbovdtbaaivanivs csunaiceasaenaeE CeO Dominguez v. Pantalone 212 Cal. App.3d 201 (1989)...ssssscsescssescusesssnerssueecsnsesssessesnvesesntscnuersancssvenssanmeansnasssaiesessneiessnies B Fein v. Permanente Medical Group Gargir v. B’Nei Akiva 66 Cal. App.4th 1269 (1998) ssccsusessesssssvsrsvssceuesssnssiensvssestrsveecovinseseseinessseecnisnisccssuentesiuensenens 7 Gersick v. Schilling 97 Cal. App.2d 641 (1950) .sesscsessssonesssssnsessesssuseensesnsninasssneesnsquasesiseenntsssinsseaseseiseenie 9 Green v, Soule 145 Cal. 96 (1904) veces Howard v, Owens Corning 72 Cal. App th 621 (1999) .ccssscsoscnststnseesensusnanennanaeuneneeunnenanninnanennnneenen 10 In re Lockheed Litigation Cases 115 Cal. Appp.4th 558 (2004) sssssststousssnsasstvtntsenssesninsnionssotapaniveanssviatetntneee 5 Locksley v. Ungureanu 178 Cal, App.3d 457 (1986)...n0rsoneiidiurprngntisthedit anni iiisiamnoNnuanelnmmaumiat 9 Sargon Enterprises, Inc. v. University ao ‘Southern ee varie 55 Cal.4th 747 (2012)... avian ai soveceseceneceesesssessucesecevesnneesvucnsansvecssansnavensnensneese 4 Tibor v. Superior Court 52: CaLApp 4th 1359-(1997) ceicsssssizassecacecnsenecuishceisusunnisrcansas ciesenoitinuciacssinencriea Toscano v. Greene Music 124 Cal. App.4th 685 (2004)...scccesssessesessnessosseeesnseenneecsnnessttscesnuneensueesenesnnesnnnvessesnstoansssesnsiaanenscens 5 ii Case No.:_ CGC-11-515542 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIALWall Street Network, Ltd. v. New York Times Co. 164 Cal. App.4th 1171 (2008) .ccssisssssssnesrsrsussneentansnsssaenenseuenaenennuenananennenanneneine 2 Statutes Code of Civil Procedure § 657 ..csssssssessssnmensessusrscenasseserecsssereesracsrecrnsesneesniesnstinnnennennaerenesnan 8 Code: of Civil Procedure § 658......c:.sssscscsessenebitssissstsocnssisinavenssossesussssevesiananssiescvsvensreetsssserecsssesenaneante 2 Code of Civil Procedure § 660. Evidence Code § 720.....:scsssssssscsssessssessseessstirernstshenssernetensustestveesavepsbnecnisinisnilesudasibicccnsasecsaserssseasonty © Evidence Code § 801 ...sscsssssssesnsesssesnsssssessesssssssecrvecarecnsarssupienapqnintsecesanesassavensussnnessnseanenanecsnensnatees 5 Evidence: Code §°802........sssessssressseosasesssesettiiosaciaontsostinntaysossansennicennindcenienentseesahtortanesnanteenonneennernsater 5 Evidence Code § 803 ili Case No.:_ CGC-11-5155421 INTRODUCTION This case arises from a traffic collision involving a taxi driven by Defendant Joel Sanchez. Plaintiff was a passenger in Mr. Sanchez’s taxi and claims personal injuries when Mr. Sanchez rear-ended a vehicle. The jury returned a verdict finding that Defendant Sanchez was responsible for Plaintiff's injury, and that Defendant Yellow Cab Cooperative, Inc, (“Yellow Cab”) was vicariously liable as the ostensible employer of Mr. Sanchez. Plaintiff now seeks a new trial on the issue of damages, contending that the jury’s award of $4,165,000 for loss of future income capacity was inadequate. Plaintiff also seeks a new trial on grounds that there was a purported error in law regarding rulings limiting Plaintiff's experts’ opinions. As set forth more fully below, Plaintiff's arguments are without merit. There was a significant conflict in the evidence as to the nature and extent of Plaintiffs claimed loss of earnings. When evaluating the award against the evidence presented by Defendants, the amount was clearly adequate. Further, Plaintiff's vague arguments concerning a supposed error in the law are unavailing. Plaintiffs experts’ opinions were limited by the Court pursuant to well- established basis of speculation, conjecture and lack of foundation. Plaintiff's motion for a new trial should be denied. I. ARGUMENT A. Plaintiffs Motion is Defective Because She Fails to Support Her Arguments on the Minutes of the Court One of the bases relied upon by Plaintiff in seeking a new trial is her contention that the jury did not hear all the evidence of her lost earnings capacity. (Memorandum of Points and Authorities in Support of Motion for New Trial (“Plaintiff's Memo”), p. 3:14-16.) To support her argument, Plaintiff speculates that the Court must have assumed that attorneys such as Plaintiff do not continue working as transactional specialists at elite firms, that is, that they either leave their law firms, stagnate or regress. (/d., p. 3:18-21.) Plaintiff fails to support her musings about what the Court actually decided, and why, with any reference to the record or to the numerous oral arguments that dealt specifically with the admissibility of Plaintiff's proposed testimony. Indeed, Plaintiff's Memo is devoid of any specific reference to the many arguments in which the Court 1 7 Case No.:_ CGC-11-515542 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL27 28 made specific rulings. These arguments included the April 29, 2015 hearing on Defendants Taxi Equipment Leasing, LLC and Yellow Cab Cooperative’s Motion in Limine No. 5 to Preclude Patricia Sullivan and Robert Johnson’s Opinions Regarding Plaintiff's Future Loss of Earnings (the “Motion in Limine”); the oral arguments during trial on May 20, 2015, May 28, 2015, and June 4, 2015; and the argument regarding jury instructions on June 18, 2015. In fact, Plaintiff's Memo does not cite to a single ruling or order of this Court despite the fact that Plaintiff alleges that the Court’s rulings limiting evidence were erroneous. Plaintiff's failures to cite to the record or to discuss the Court’s actual rulings are procedurally fatal to her attempt to seek a new trial. California Code of Civil Procedure § 658 specifically requires Plaintiff to support her motion on the minutes of the court. Plaintiff must also refer to the pleadings and orders of the court on file, to the documentary evidence offered at trial and to the report of the proceedings on trial taken by the recorder (or to the certified transcript). (Cal. Code Civ. Proc. § 660.) New trial motions are creatures of statute and the procedural steps for making and determining those motions are mandatory and must be strictly followed. Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1193. Thus, to the extent that Plaintiff complains about an order of the Court, Plaintiff has an obligation to specifically identify it and to state precisely why that order was incorrect. Plaintiff has failed to do that and as a result has left Defendants and this Court in the dark about the specific rulings or orders she is complaining about. The Motion for New Trial should be summarily denied on that basis. Moreover, Plaintiff's tactic of refusing to identify the key rulings of the Court is misleading and disingenuous. The Court made specific rulings limiting some of Plaintiff's proffered evidence on the grounds that the evidence was speculative and that Plaintiff's experts were unqualified to render opinions about speculative future earnings. The Court referenced specific cases and facts, and identified his rationale in detail. (See, for example, the Court’s ruling on June 4, 2015 regarding earnings capacity. (Declaration of D. Douglas Shureen (“Shureen Decl.”), §2, Exh. 1.) For Plaintiff to say that “[t]he only apparent reason for excluding such evidence is the view that attorneys such as Fua do not continue working as transactional specialist 2. Case No.:_ CGC-11-515542 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIALat elite firms, i.c., they either leave their prestigious law fires or stagnate or regress in their careers” (Plaintiff's Memo, p. 3:18-21), is deceptive, misleading and improper. B. The Court Appropriately Limited the Evidence Regarding Future Earnings to Admissible Evidence 1. The Court's Evidentiary Rulings On several occasions the Court ruled that some of the evidence Plaintiff wanted to introduce was not admissible because it was, among other things, highly speculative. For example, on April 29, 2015, after hearing argument on the Motion in Limine, the Court ruled that Plaintiff could not introduce expert testimony that Plaintiff could have been a partner or general counsel of a corporation. The Court noted that such testimony would be highly speculative. In its ruling the Court likely considered the deposition testimony of Ivan Gaviria, Plaintiffs supervising attorney at the Gunderson firm, that it would have been speculative to say that Plaintiff would ever be a partner at the firm. The Court also noted such future awards as stock options and bonuses were also largely speculative and subject to too many variables. (Shureen Decl., §3.) Later, on May 28, 2015, in oral argument prior to the trial testimony of Plaintiff's expert, Dr. Sullivan, Plaintiff renewed her request that her experts be allowed to testify that Plaintiff could have been a partner at a major law firm or a general counsel at a major corporation. (Shureen Decl., §4, Exh. 2.) In particular, Plaintiff sought to introduce the testimony of Dr. Sullivan and another witness, Gina Marek, regarding the valuation of a partnership at the Gunderson firm or some other top tier Silicon Valley law firm. (/d., pp. 1-2.) The Court denied the Motion. The Court noted that it would be a stretch to say that Plaintiff would one day be a partner. (/d., p. 8:1- 3.) The Court further noted that ten months (of employment at the Gunderson firm) is not enough for anyone to guess or speculate about whether Plaintiff has the capacity to be a partner. (/d,, p. 9:25-27.) In its ruling the Court stated that such evidence would be speculative and that there were too many variables to consider with respect to Plaintiff's ability to become a partner. (Jd., p. 13:15-18.) The Court acknowledged such complicating factors as the brevity of Plaintiff's career before the accident, her expressed concern about the number of hours she was required to work, and that she might have decided not to practice law and do something else instead. (/d., p. 13:14- : 3 Case No.:_ CGC-11-515542 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL,14:25), Finally, the Court ruled that Dr. Sullivan did not know enough to make a reliable evaluation or opinion as to what Plaintiff's compensation would be. (/d., p. 14:26-15:5,) The Court again addressed the issue on June 4, 2015 after oral argument before the testimony of Dr. Johnson, the economist. (Shureen Decl., 42, Exh. 1, pp. 14-35) Plaintiff's counsel again argued that Plaintiff's earnings capacity was far in excess of her actual earnings and that Dr. Johnson should be allowed to testify that Plaintiff had the capacity to earn sums far in excess of her present earnings. (/d., p. 17:15-19:18.) After argument, the Court ruled that Dr. Johnson would not be allowed to testify that Plaintiff had the capacity to earn a salary in excess of the fourth year Gunderson salary scale as reflected in Exhibit 28. (/d., p. 29:20-30:9.) This ruling was based, in part, on Mr. Gaviria’s testimony that it would have been speculation for him to say that Plaintiff would have remained employed as an associate at the Gunderson firm for 5 years. (id. p. 24:5-27:18.) (See Shureen Decl., 5, Exh. 3, Gaviria testimony, p. 97:11-14.) (Mr. Gaviria also testified that when the firm looked at the question of the average associate stay, they came to the conclusion that it was about three years. (/d., Gaviria testimony, p. 23:4-15.) In the June 4, 2015 hearing, the Court clearly and specifically laid out his rationale for excluding expert testimony regarding speculative earnings after four years as an associate at the Gunderson firm. (/d., p. 31:14-32:19.) The Court appropriately exercised its discretion to limit the evidence to admissible, non-speculative evidence. (/d.) Moreover, the Court pointed out that the Gunderson salary schedule (Exhibit 28) was already in evidence and that jury could consider it. (Id., p. 33:3-10.) This fact was acknowledged by Plaintiffs counsel in the same argument. (/d., p. 33:20-24.) Later, at oral argument on June 17, 2015, Defendants objected to Plaintiff's proposed argument to the jury that her lost earnings capacity was $20,000,000. The Court ultimately allowed Plaintiff to make such an argument, subject to reasonable limitations, citing jury instruction CACI 3309D, and the cases cited in the commentary thereto. 2. Evidence that is Speculative or that Lacks Foundation is Inadmissible On several occasions during trial the Court noted its responsibilities under the Sargon decision (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747) to 4. Case No.: CGC-11-515542 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIALserve as an evidentiary gatekeeper. In Sargon, the plaintiff's expert attempted to testify that plaintiff's lost profits were in a range starting with hundreds of millions of dollars. Plaintiffs pre- injury net profit was $101,000. (Jd., p. 753.) The court exhaustively reviewed California law and concluded that the proposed evidence was inadmissible. The court addressed Evidence Code §§ 801 and 802’s requirements and concluded that the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. (/d, p. 770.) Under California law, to be admissible an expert must base his or her opinion on information considered reliable. Where an expert’s opinion is based on assumed and/or conjectural information, it does not rise to the level of admissible evidence and may be excluded on that basis. (Borger v. Dept. of Motor Vehicles (2011) 192 Cal.App.4th 1118, 1122 (“Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value.” (internal quotations omitted)); (see also Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510 (“[E]xpert opinion may not be based on assumptions of facts that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact.”); In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564 (noting that “the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible.”)). As noted by the cited authority, the defect in expert opinion premised on speculative assumptions goes to the opinion’s fundamental foundation and admissibility, and NOT its weight. It must be excluded. Evid. Code, § 803 (“The court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion.” (emphasis added). California courts that have considered similar future lost income opinions that were premised on nothing more than assumption have readily excluded the proffered opinion. (See, e.g., Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 696.) In Toscano the court vacated the judgment below for lost future earnings, finding that “even giving deference to the trial court’s ruling and drawing all inferences in [plaintiff's] favor, the evidence was too speculative to lend 7 : 5 _Case No.: CGC-11-515542 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIALsupport to the trial court’s award of [plaintiff's] lost future earnings... .” (Id. at 695-69.) The reason for this is that the existence of the future earnings at issue was based entirely on the opinion of an expert who “simply assumed” the employment upon which she based her opinion. (/d. at 696.) “Although the fact of [plaintiff's] damage was established, [the expert’s] conclusions as to the extent of [plaintiff's] lost employment were wholly conjectural. (/d. (emphasis in original). “An expert’s opinion must not be based upon speculative or conjectural data.” (Jd.) This is the exactly the type of evidence Plaintiff asked the Court to have admitted by expert testimony and evidence of other people’s earnings. Further, pursuant to Evidence Code § 720, an expert is qualified as such only if the expert has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates (Evidence Code § 720 (emphasis added).) An expert’s opinion is defective if it fails to show the expert’s skill, training, or experience to support the opinion. (Tibor v. Superior Court (1997) 52 Cal.App.4th 1359, 1364 fn 1.) Moreover, the fact that a purported expert may be qualified in one field vaguely related to another does not mean that he is qualified in that other field. (California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 66-67.) Here, neither of the experts Plaintiff intended to provide testimony about her future earnings had the skill, experience or training to testify regarding the course of Plaintiff's legal career, advancement, partnership prospect or possible in-house counsel employment and their testimony was therefore correctly excluded. And, as noted by the Court on multiple occasions, such testimony would have nevertheless been completely speculative and conjectural. Cc The Cases Cited by Plaintiff do not Support Plaintiff's Theory that Speculative Evidence is Admissible The cases cited by Plaintiff do not support her arguments. Fein v. Permanente Medical Group (1985) 38 Cal.3d 137 merely acknowledges that lost future earnings are a proper element of damages. Jd. That issue is not in dispute; the Judgment includes an award for that loss. Connolly y, Pre-Mixed Concrete Company (1957) 49 Cal.2d 483, adds nothing to Plaintiff's argument. In Connolly, the defendants argued that a future earnings award was excessive. The Court merely held that loss of earnings power is an element of damages and that such loss can be inferred from a 6 Case No.: CGC-11-515542 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIALthe nature of the injury. There was no discussion of the admissibility of evidence or speculation, and no evidence that defendants had objected to the expert witness testimony offered. Connolly is irrelevant to this case. Plaintiff's reliance on Gargir v. B’Nei Akiva (1998) 66 Cal.App.4th 1269, 1282 is likewise misplaced. In Gargir, the question framed was whether the court erred in submitting a jury instruction (BAJI No, 14.12) about the plaintiffs right to recover damages for lost earnings capacity because there was no evidence to support the claim, (/d., p. 1272.) The plaintiff was a young student injured in a skiing accident. (/d., p. 1282.) She had intended to pursue a career in special education and sought a jury instruction that would allow the jury to award her damages for her lost earnings capacity. The court held that she was not required to present expert testimony about the loss of future earnings and that such loss may be inferred from the nature of her injury. (Id) In our case, however, at least four experts provided exhaustive testimony about what work Plaintiff could do after her injury, how her injury affected her ability to work, and what she could have earned had she been able to continue working as a transactional attorney. The Court allowed all of that testimony, and gave the jury an instruction (CACI 3903D) similar to the BAJT 14.12 | instruction given in the Gargir case, as requested by Plaintiff. In short, the Court here fully | complied with the holding in the Gargir case. Plaintiff nevertheless seeks to expand on a comment in Gargir that the test is ‘what she could have earned.’ (Plaintiff's Memo, p. 3:3-4.) Plaintiff takes this statement out of context, and argues that it allows her to- present expert witness testimony unrestrained by other evidentiary rules. She is wrong. The reference in Gargir was intended only to reflect the fact that people who do not have established careers, such as students or apprentices, should not be foreclosed from proving that had they not been injured they would have been able to pursue their careers. Jd., p. 1280 (“[t]he important distinction just discussed is particularly applicable when the plaintiff is a student or an apprentice.”) (emphasis in original). Gargir does not give Plaintiff license to speculate that she could have eared multiples of what she was actually earning simply because she may, or may not, have had a bright future. The case does not allow her to introduce speculative evidence that she ‘could have been’ a partner or the general counsel of a major 7 Case No: CGC-11-515542 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIAL27 28 corporation, or that she could have earned the salaries that high-level associates at the Gunderson firm earn. The principles discussed in the cases cited by Plaintiff were fully addressed by the Court in the trial of this matter. Plaintiff introduced evidence of what she might have earned had she not been injured. Expert witnesses were used to present this evidence. The Court gave the jury instruction Plaintiff sought, and allowed Plaintiff to argue damages in excess of reasonably certain earnings, over Defendants’ objections. Plaintiff introduced exhibit 28, which set forth the earning schedule for Gunderson attorneys through their ninth year of employment. Plaintiff's counsel was allowed to ask the jury for $12,000,000 in his closing argument. The jury made a decision based on all of the evidence and awarded Plaintiff $4,165,000 in lost earnings capacity, There was no error. The Court correctly exercised its responsibility and discretion to exclude speculative evidence, both expert and percipient, about future earnings far in excess of Plaintiff's earnings at the time of the accident. D. The Evidence of Plaintiff’s Future Loss of Earnings Was in Substantial Conflict; Plaintiff Cannot Show that the Jury Clearly Should Have Reached a Different Verdict The Court does not disregard the jury's verdict or grant a new trial simply because it would have reached a different result if the litigation had been decided by a bench trial. (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215). Instead, a finding of insufficiency of the evidence is only supported if “there is an absence of evidence or that the evidence received, in the individual judgment of the trial judge, is [clearly] lacking in probative force to establish the proposition of fact to which it is addressed.” (/d.; See Also Code Civ Proc § 657). The Court “must be clearly satisfied that the verdict is wrong.” (Green v. Soule (1904) 145 Cal. 96, 103). Also, “abuse of discretion in denying a motion for new trial on the ground of the inadequacy or excessiveness of damages is not shown unless it appears that the verdict is the result of passion or prejudice.” (Barnett v. Keilig (1959) 170 Cal.App.2d 177, 179-180). In Dominguez, supra, 212 Cal.App.3d 201, the trial court declined to grant a motion for a new trial even though the court would have come to the opposite verdict because there was “sufficient credible evidence to support the verdict, and that the jury was reasonable in believing . a 8 Case No; CGC-11-515542 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIALthe witnesses it apparently had believed in reaching its verdict.” (Id. at 216). Similarly, in Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 462-63, the Court weighed the evidence presented at trial and denied a motion for new trial because the Court was found “that the evidence that was presented was susceptible of the returned verdict”. Here, there was sufficient credible evidence to support the jury verdict award of $4,165,000 for Plaintiff's loss of earnings capacity. 1, Defendants’ Evidence, Which Plaintiff does not Mention, Supported the Jury’s Verdict Plaintiff appears to regard Mr. Johnson’s analysis as the benchmark against which the amount of the jury's award must be evaluated. However, Plaintiff ignores Defendants’ evidence, which established that the present cash value of all of Plaintiff's likely future loss of earnings fell within the range of $3.9 million to $4.6 million. Defendants’ vocational rehabilitation expert, Timothy Farrell, provided the jury three scenarios for future income loss, including whether Plaintiff would have continued in her career as an associate, went “in-house,” or left the legal profession entirely. These scenarios were then evaluated and quantified by Defendants’ retained economist, Phillip Allman, Ph.D., and reduced to present value. At trial, the jury was presented with three options by Defendants’ experts: (1) future earnings based upon average attorneys’ salaries in the Bay Area - $4,2 million; (2) future earnings based upon employment at Gunderson Detmer and then transitioning to an in-house corporate position - $4.6 million; and (3) future earnings based upon employment at Gunderson Detmer and then transitioning to a smaller firm - $3.9 million. (See Weber Decl., Exhibit A [Trial Exhibits 385, 386 and 387, consisting of the three future loss scenarios]). These amounts were then reduced to account for mitigation based upon Plaintiff's then-current employment options, including future employment as a lawyer, claims adjuster, compliance officer, or loan officer (See Exhibit “A” to Weber Decl.). A conflict in the evidence as to the nature and extent of Plaintiff's injuries is sufficient to support the jury’s finding on damages and the trial court’s decision that the damages are adequate as a matter of law. (Gersick v. Schilling, (1950) 97 Cal.App.2d 641, 648). As noted in Abbott v. Taz Express (1998) 61 Cal.App.4th 853: 9 Case No: CGC-11-515542 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIALDamages, even economic damages, are difficult to measure in personal injury cases, There may be disputed facts regarding the amount of medical expenses or lost wages, or disputed inferences about the probable course of events such as the length of incapacitation or whether a continuing disability will worsen, plateau, or improve. (Id, at 856-857). Here, Plaintiff's future employment prospects, both in terms of her ability to return to work in light of her injury, as well as her earnings capacity without the injury, were matters of significant dispute. Several witnesses, including Plaintiff's former supervising partner, Plaintiff's former co-worker, and both parties’ vocational and economics experts testified at length to these issues. Measured against Defendants’ evidence, rather than Mr. Johnson’s testimony, the jury’s $4,165,000 million award for loss of future earnings was plainly adequate. 2. The Jury Was Not Bound by the Opinion of Plaintiff's Expert Contrary to what Plaintiff suggests in her moving papers, the jury was not required to credit all or any of Mr. Johnson’s cost projections. Indeed, the jury was provided CACI 219 (Expert Witness Testimony). This jury instruction enabled the jurors to determine the believability of a witness by considering any matter which has a tendency to prove or disprove the truthfulness of his or her testimony, specifically including the demeanor and manner of the witness, the character and quality of the testimony, the existence or non-existence of any fact testified to by the witness, and the existence of bias or motive. Thus, a jury is not bound by an expert’s opinion. Indeed, a “jury may entirely reject the testimony of a plaintiff's expert, even where the defendant does not call any opposing expert and the expert testimony is not contradicted.” (Howard v, Owens Corning (1999) 72 Cal.App.4th 621, 633). The jury apparently agreed that evidence that Defendants’ experts’ opinions were more credible and/or persuasive than those of Mr. Johnston. Further, the jury had reason to discount Mr, Johnston’s cost projections. In particular, Mr. Johnston’s future loss calculations provided for no mitigation in terms of amounts that Plaintiff could have earned by way of return to gainful employment. By contrast, Defendants’ experts offered several such scenarios, including returning to the practice of law and specializing in disability rights, or using Plaintiff's accounting background and opening up the areas of being a loan or compliance officer in a corporation. = 10 Case No.:_ CGC-11-515542 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL.Nonetheless, Plaintiff takes the position in her moving papers that because the jury awarded only 51% of the amount offered by Mr. Johnston, that the jury’s verdict is plainly inadequate. Such is contrary to the law. Further, it fails to account for the evidence offered by Defendants as to Plaintiff's damages claims. UI. CONCLUSION Consistent with the arguments and authorities set forth above, Plaintiffs motion for a new trial should be denied. Dated: January 5, 2016 CARLSON, CALLADINE & PETERSON LLP COLIN C. MUNRO CHRISTOPHER J. WEBER Attorneys for Defendants TAXI EQUIPMENT LEASING LLC, YELLOW CAB COOPERATIVE, INC, Dated: January 5, 2016 McMILLAN & SHUREEN, LLP AA AMA en By:_ Ao = = D, DOUGLAS SHUREEN Attorneys for Defendant/Cross-Complainant JOEL ENRIQUE ANDINO SANCHEZ il Case N C-11-51554227 28 PROOF OF SERVICE Ida Cristina Cruz Fua v. Joel Enrique Andino Sanchez, et al. San Francisco Superior Court Case No. CGC-11-515542 I am employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action. My business address is 353 Sacramento Street, 16th Floor, San Francisco, California 94111. On January 5, 2016, I served the following documents: 1. DEFENDANTS’ JOINT OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES; 2. DECLARATION OF CHRISTOPHER J. WEBER IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL; and 3. DECLARATION OF D. DOUGLAS SHUREEN IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL in the manner indicated below, on the interested parties in said action at the following addresses (including fax numbers and email addresses, if applicable) as follows: Todd P, Emanuel, Esq. Telephone: (650) 369-8900 Mark D, Rosenberg, Esq. Facsimile: (650) 369-8999 Emanuel Law Group Email: todd @TEinjurylaw.com 702 Marshall Street, Suite 400 Email: Redwood City, CA 94063 Attorneys jor Plaintiff Fua *VIA OVERNIGHT DELIVERY David J. Cook, Esq. Telephone: (415) 989-4730 Cook Collection Attorneys Facsimile: (415) 989-04-91 A Professional Law Corporation Email: Cook@cookcollectionattorneys.com 165 Fell Street, Attorneys for Plaintiff Fua San Francisco, CA 94102 ***VIA MAIL D. Douglas Shureen, Esq. Telephone: (707) 525-5400 MeMillian & Shureen LLP Facsimile: (707) 576-7955 50 Santa Rosa Avenue, Suite 200 Email: doug.shureen@memillanshureen.com Santa Rosa, CA 95404 Attorneys for Defendant Joel Enrique Andino Sanchez **VIA EMAIL Robert S. Aaron, Esq. Telephone: (415) 438-7801 Aaron & Wilson, LLP Facsimil 7808 150 Post Street, Suite 400 i aaron-wilson.com San Francisco, CA 94108 Co-counsel for Defendants Taxi Equipment and Yellow Cab Cooperative, Inc. ***VIA MAIL [X] (BY LEXISNEXIS FILE & SERVEXPRESS) Service was effected by causing a true and correct copy of the documents listed above to be sent via electronic transmission through LexisNexis File & ServeXpress to the persons at the addresses set forth above. PROOF OF SERVICE*[X] (BY OVERNIGHT DELIVERY/COURIER) I deposited such envelope in a box or facility regularly maintained by the express service carrier in an envelope or package designated by the express service carrier with delivery fees provided for. **(X] (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a Court Order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the email addresses listed. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. ***TX](BY MAIL) I am “readily familiar” with the firm’s practice of collection and processing correspondence by mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage fully prepaid at San Francisco, California in the ordinary course of business. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 5, 2016, at San Francisco, California. SHARI L. HIIBEL PROOF OF SERVICE