Preview
Gregg S. Garrison (SBN 141653)
GARRISON LAW CORPORATION
161 Cortez Avenue
Half Moon Bay, CA 94019
SANM
FX
OC
Eg NTY
Telephone: (650) 726-1111 V 2 2013
Facsimile: (650) 726-9315
4 QI4 SPelIer 8OCgtt
5 Herman I. Kalfen (SBN 160592) vecglg=
1 Embarcadero Center, Suite 500
San Francisco, CA 94111
Telephone: (415) 315-1710
7
Facsimile: (415) 433-5992
8
ATTORNEYS FOR PlaintiffMICHAELCHANG, an individual and DBA Sunrise
Cleaners
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF SAN MATEO
13
14
MICHAELCHANG, an individual,
Case No. CIV 489065
15
Plaintiff,
gG.I~ 9 C
vs.
PLAINTIFF MICHAELCHANG'S MOTION
IN LIMINE01 —TO EXCLUDE
17
FARMER'S INSURANCE COMPANY, INC., TESTIMONY CONTRARY, TO FARMERS
18 FARMER'S GROUP, INC., FARMER' PRIOR MATERIALFACT NOT IN
INSURANCE EXCHANGE AND TRUCK DISUPTE FROM FARMERS PRIOR
INSURANCE EXCHANGE, reciprocal inter- MOTION FOR SUMMARY JUDGMENT—
insurance exchanges; Does 1 to 99, Inclusive, THERE WAS BREAKING OR CRACKING
FROM RUPTURED MAN-WAYSEAL
Defendants.
21
22
BY FAX
23
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD
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25
26
27 ~
Page Iof 5 ~
28 Michael Chang's Motion in Limine ¹I
(Chang v. Farmers,San Mateo Superior ¹CIV489065)
Plaintiff Michael Chang hereby moves this court for an order precluding any
argument, including evidence or testimony by Farmers in Opposition to Farmers previously
stated Statement of Undisputed Fact.
This Motion is based on the grounds that Preclusion, including Judicial Estoppel
and Equitable Estoppel precludes Farmers from now attempting to dispute a Fact that
Farmers previously stated was Undisputed.
This motion is made under the provisions of Civil Code section 3295(d) and
Evidence Code Sections 350 and 352, and is based on the supporting Memorandum of
10 Points and Authorities, the pleadings, and papers on file in this action, and upon such
11
evidence as may be presented prior to or at the hearing of this matter.
12
13 MEMORANDUMOF POINTS AND AUTHORITIES
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15
I. PRELIMINARYSTATEMENT
This is an action brought by Policy Holder Insured Michael Chang for 1" party
16
17 property dainage coverage, third party liability coverage, and for damages, including
18 Brandt Fees and bad faith damages.
19 This lawsuit isnecessary because Farmers failed to pay a valid 1" party property
20 claim. Further, if Farmers would 1"
have provided the Party Property coverage, there
21
would be no third party suit.
22
Farmers also failed to defend the lawsuit from 'the Kartal, the operator of a
23
restaurant against his landlord (Plaintiff Chang herein) for lost profits allegedly caused by
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25 soil contamination below the banquet room of his restaurant and all related cross actions.
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27 ~ Page2of 5 ~
28 Michael Chang's Motion in Limine ¹I
(Chang v. Farmers,San Mateo Superior¹CIV489065)
II. THE COURT MAYEXCLUDE CERTAIN EVIDENCE IN ADVANCE OF
TRIAL—HAS GATEKEEPER RESPONSIBILITY
There is no specific statutory authority for motions in limine. However, there is
4
well-recognized case law that allows the procedure. (Clemens v. American 8'arranty Corp.
5
(1987) 193 C.A. 3 444,451.)
7 The court has the power to grant a motion in limine to exclude any kind of evidence
that could be objected to at trial, eitheras irrelevant or subject to discretionary exclusion as
9
prejudicial, confusing or too time consuming. (Clemens v. American 8'arranty Corp.,
10
supra; Evidence Code sections 350 and 352.)
11
It isalso within the inherent power of the Court to control its process and order so
12
I3
as to conform to law and justice. (Code of Civil Procedure section 128(a)(8).) The court
gk 14 has the power to hear and determine questions of admissibility of evidence outside the
15 presence of the jury. (Evidence Code section 402(b).) The procedure for Motions in
U)5
Limine is also recognized by California Rules of Court, Rule 3.1112(f).
17
Only relevant evidence is admissible. (Evidence Code section 350.) Relevant
18
evidence is defined in Evidence Code section 210 as ..."evidence, including evidence
19
relevant to the credibility of a witness or hearsay declarant, having any tendency in reason
20
to prove or disprove any disputed fact that isof consequence to the determination of the
action." In this case, the instant expert witness declared at his deposition that he is not
offering testimony as to Stoddard Solvent. The Supreme Court of California has held that
the trial judge has the "gatekeeper" responsibility, and have wide discretion to exclude
25
26
27 ~
Page 3of 5 ~
28 Michael Chang's Motion in Limine ¹I
(Chang v. Farmers,San Mateo Superior ¹CIV489065)
unreliable expert testimony. Sargon Enterprises, Inc. v. University of California (Case No.
S191500, 11/26/12).
III. PRECLUDE FARMERS FROM ARGUING THERE WAS NO
LEAKINGOF MIXTURE OF WATER AND STODDARD SOLVENT FROM
A RUPTURED MANWAYSEAL AT THE TOP OF THE TANK
Farmers admitted in its Separate Statement to its second (of three) Motions for
8
Summary Judgment the material factual basis it said it needed to approve coverage in
9
November 2006. Farmers admitted as Farmers Material Fact ¹19 Not In Dispute:
10
"The tank discovered in 2006 was leaking the mixture of water and Stoddard
solvent from a ruptured man-way seal at the top of the tank, which was about
3 feet below the ground surface."
12
13 Farmers should now be precluded &om arguing that there was not a ruptured man-
14 way seal at the top of the tank. This would be based on long standing judicial practice of
4~ 15
(c+J, preclusion, including Judicial Estoppel and Equitable Estoppel.
U (Pi
16
"The policies underlying preclusion of inconsistent positions are 'general
17
consideration[s] of the orderly administrati'on of justice and regard for the dignity of
18
judicial proceedings.'" Jackson v. County ofLos Angeles, 60 Cal.App.4th 171 (1997). The
19
20 Jackson Court further explained that the:
21 doctrine [of Judicial Estoppel] serves a clear purpose: to protect the integrity of
the judicial process.... This obviously contemplates something other than the
22 permissible practice...of simultaneously advancing in the same action
inconsistent claims or defenses which can then, under appropriate judicial
23
control, be evaluated as such by the same tribunal, thus allowing an internally
24 consistent final decision to be reached. Jackson v. County of Los Angeles, 60
Cal.App.4th 171 (1997), quoting Cleveland v. Policy Management Systems Corp.
25 (5th Cir.1997) 120 F.3d 513, 517, fn. omitted.)
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27 ~
Page 4of 5 ~
28 Michael Chang's Motion in Limine ¹I
(Chang v. Farmers,San Mateo Superior ¹CIV489065)
1 In this instance, it would be improper, if not further bad faith by Farmers to argue
now at trial facts contrary to what Farmers asserted at Summary Judgment was a Material
3
Fact Not In Dispute.
4
The advantage of determination now by Motion in Limine is to avoid the obviously
5
futile attempt to 'unring the bell'n the event a motion to strike is granted in the
6
proceedings before the jury." (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337,
8 [145 Cal.Rptr. 47). This issue is also appropriate to resolve by Motion in Limine now at
9 the outset to enhance the efficiency of this trial. (People v. Morris (1991) 53 Cal.3d 152,
188, 279 Cal.Rptr. 720, 807 P.2d 949, disapproved on an unrelated ground in People v.
11
Stansbury (1995) 9 Cal.4th 824, 830, 38 Cal.Rptr.2d 394, 889 P.2d 588.) (Id., 49
12
Cal.App.4th at 669-670.
13
14 IV. CONCLUSION
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This Motion in Limine is to exclude any testimony contrary to Farmers previously
16
17
admitted Statement of Undisputed Material Fact. Any other course would be unfair and
18 prejudicial to moving party herein. No evidence or testimony should be allowed to be
19 offered at trial by Farmers contrary to its prior posidon.
20
Respectfully Submitted GARRISON LAW CORPORATION
DATED: November 19, 2013
23
24 Gregg S. Garrison, JD, REA, CEP
Attorney for MICHAELCHANG, an individual
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27 ~
Page 5of 5 ~
28 Michael Chang's Motion in Limine ¹l
(Chang v. Farmers,San Mateo Superior ¹CIV489065)
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Gregg S. Garrison (SBN 141653) GARRISON LAW CORPORATION 161 Cortez Avenue Half Moon Bay, CA 94019 SANM FX OC Eg NTY Telephone: (650) 726-1111 V 2 2013 Facsimile: (650) 726-9315 4 QI4 SPelIer 8OCgtt 5 Herman I. Kalfen (SBN 160592) vecglg= 1 Embarcadero Center, Suite 500 San Francisco, CA 94111 Telephone: (415) 315-1710 7 Facsimile: (415) 433-5992 8 ATTORNEYS FOR PlaintiffMICHAELCHANG, an individual and DBA Sunrise Cleaners 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 14 MICHAELCHANG, an individual, Case No. CIV 489065 15 Plaintiff, gG.I~ 9 C vs. PLAINTIFF MICHAELCHANG'S MOTION IN LIMINE01 —TO EXCLUDE 17 FARMER'S INSURANCE COMPANY, INC., TESTIMONY CONTRARY, TO FARMERS 18 FARMER'S GROUP, INC., FARMER' PRIOR MATERIALFACT NOT IN INSURANCE EXCHANGE AND TRUCK DISUPTE FROM FARMERS PRIOR INSURANCE EXCHANGE, reciprocal inter- MOTION FOR SUMMARY JUDGMENT— insurance exchanges; Does 1 to 99, Inclusive, THERE WAS BREAKING OR CRACKING FROM RUPTURED MAN-WAYSEAL Defendants. 21 22 BY FAX 23 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD 24 25 26 27 ~ Page Iof 5 ~ 28 Michael Chang's Motion in Limine ¹I (Chang v. Farmers,San Mateo Superior ¹CIV489065) Plaintiff Michael Chang hereby moves this court for an order precluding any argument, including evidence or testimony by Farmers in Opposition to Farmers previously stated Statement of Undisputed Fact. This Motion is based on the grounds that Preclusion, including Judicial Estoppel and Equitable Estoppel precludes Farmers from now attempting to dispute a Fact that Farmers previously stated was Undisputed. This motion is made under the provisions of Civil Code section 3295(d) and Evidence Code Sections 350 and 352, and is based on the supporting Memorandum of 10 Points and Authorities, the pleadings, and papers on file in this action, and upon such 11 evidence as may be presented prior to or at the hearing of this matter. 12 13 MEMORANDUMOF POINTS AND AUTHORITIES 14 15 I. PRELIMINARYSTATEMENT This is an action brought by Policy Holder Insured Michael Chang for 1" party 16 17 property dainage coverage, third party liability coverage, and for damages, including 18 Brandt Fees and bad faith damages. 19 This lawsuit isnecessary because Farmers failed to pay a valid 1" party property 20 claim. Further, if Farmers would 1" have provided the Party Property coverage, there 21 would be no third party suit. 22 Farmers also failed to defend the lawsuit from 'the Kartal, the operator of a 23 restaurant against his landlord (Plaintiff Chang herein) for lost profits allegedly caused by 24 25 soil contamination below the banquet room of his restaurant and all related cross actions. 26 27 ~ Page2of 5 ~ 28 Michael Chang's Motion in Limine ¹I (Chang v. Farmers,San Mateo Superior¹CIV489065) II. THE COURT MAYEXCLUDE CERTAIN EVIDENCE IN ADVANCE OF TRIAL—HAS GATEKEEPER RESPONSIBILITY There is no specific statutory authority for motions in limine. However, there is 4 well-recognized case law that allows the procedure. (Clemens v. American 8'arranty Corp. 5 (1987) 193 C.A. 3 444,451.) 7 The court has the power to grant a motion in limine to exclude any kind of evidence that could be objected to at trial, eitheras irrelevant or subject to discretionary exclusion as 9 prejudicial, confusing or too time consuming. (Clemens v. American 8'arranty Corp., 10 supra; Evidence Code sections 350 and 352.) 11 It isalso within the inherent power of the Court to control its process and order so 12 I3 as to conform to law and justice. (Code of Civil Procedure section 128(a)(8).) The court gk 14 has the power to hear and determine questions of admissibility of evidence outside the 15 presence of the jury. (Evidence Code section 402(b).) The procedure for Motions in U)5 Limine is also recognized by California Rules of Court, Rule 3.1112(f). 17 Only relevant evidence is admissible. (Evidence Code section 350.) Relevant 18 evidence is defined in Evidence Code section 210 as ..."evidence, including evidence 19 relevant to the credibility of a witness or hearsay declarant, having any tendency in reason 20 to prove or disprove any disputed fact that isof consequence to the determination of the action." In this case, the instant expert witness declared at his deposition that he is not offering testimony as to Stoddard Solvent. The Supreme Court of California has held that the trial judge has the "gatekeeper" responsibility, and have wide discretion to exclude 25 26 27 ~ Page 3of 5 ~ 28 Michael Chang's Motion in Limine ¹I (Chang v. Farmers,San Mateo Superior ¹CIV489065) unreliable expert testimony. Sargon Enterprises, Inc. v. University of California (Case No. S191500, 11/26/12). III. PRECLUDE FARMERS FROM ARGUING THERE WAS NO LEAKINGOF MIXTURE OF WATER AND STODDARD SOLVENT FROM A RUPTURED MANWAYSEAL AT THE TOP OF THE TANK Farmers admitted in its Separate Statement to its second (of three) Motions for 8 Summary Judgment the material factual basis it said it needed to approve coverage in 9 November 2006. Farmers admitted as Farmers Material Fact ¹19 Not In Dispute: 10 "The tank discovered in 2006 was leaking the mixture of water and Stoddard solvent from a ruptured man-way seal at the top of the tank, which was about 3 feet below the ground surface." 12 13 Farmers should now be precluded &om arguing that there was not a ruptured man- 14 way seal at the top of the tank. This would be based on long standing judicial practice of 4~ 15 (c+J, preclusion, including Judicial Estoppel and Equitable Estoppel. U (Pi 16 "The policies underlying preclusion of inconsistent positions are 'general 17 consideration[s] of the orderly administrati'on of justice and regard for the dignity of 18 judicial proceedings.'" Jackson v. County ofLos Angeles, 60 Cal.App.4th 171 (1997). The 19 20 Jackson Court further explained that the: 21 doctrine [of Judicial Estoppel] serves a clear purpose: to protect the integrity of the judicial process.... This obviously contemplates something other than the 22 permissible practice...of simultaneously advancing in the same action inconsistent claims or defenses which can then, under appropriate judicial 23 control, be evaluated as such by the same tribunal, thus allowing an internally 24 consistent final decision to be reached. Jackson v. County of Los Angeles, 60 Cal.App.4th 171 (1997), quoting Cleveland v. Policy Management Systems Corp. 25 (5th Cir.1997) 120 F.3d 513, 517, fn. omitted.) 26 27 ~ Page 4of 5 ~ 28 Michael Chang's Motion in Limine ¹I (Chang v. Farmers,San Mateo Superior ¹CIV489065) 1 In this instance, it would be improper, if not further bad faith by Farmers to argue now at trial facts contrary to what Farmers asserted at Summary Judgment was a Material 3 Fact Not In Dispute. 4 The advantage of determination now by Motion in Limine is to avoid the obviously 5 futile attempt to 'unring the bell'n the event a motion to strike is granted in the 6 proceedings before the jury." (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337, 8 [145 Cal.Rptr. 47). This issue is also appropriate to resolve by Motion in Limine now at 9 the outset to enhance the efficiency of this trial. (People v. Morris (1991) 53 Cal.3d 152, 188, 279 Cal.Rptr. 720, 807 P.2d 949, disapproved on an unrelated ground in People v. 11 Stansbury (1995) 9 Cal.4th 824, 830, 38 Cal.Rptr.2d 394, 889 P.2d 588.) (Id., 49 12 Cal.App.4th at 669-670. 13 14 IV. CONCLUSION 15 This Motion in Limine is to exclude any testimony contrary to Farmers previously 16 17 admitted Statement of Undisputed Material Fact. Any other course would be unfair and 18 prejudicial to moving party herein. No evidence or testimony should be allowed to be 19 offered at trial by Farmers contrary to its prior posidon. 20 Respectfully Submitted GARRISON LAW CORPORATION DATED: November 19, 2013 23 24 Gregg S. Garrison, JD, REA, CEP Attorney for MICHAELCHANG, an individual 25 26 27 ~ Page 5of 5 ~ 28 Michael Chang's Motion in Limine ¹l (Chang v. Farmers,San Mateo Superior ¹CIV489065)