Preview
Phan
E-FILED
Terence (SBN 289609)
10/9/2018 1:29 PM
11060 White Rock Road, Suite 250
Rancho Cordova, CA 95670 FRESNO COUNTY SUPERIOR COURT
Telephone: 916-465—9965 By: C. York, Deputy
Facsimile: 916-635-5296
Attorney for Defendant,
PEDRO BAUTlSTASAUL BAUTlSTA
FRESNO COUNTY SUPERIOR COURT
UNLIMITED JURISDICTION
1o
11 KEREN FARLEY; JONATHAN FARLEY, CASE NO: 1BCECG03858
12 Plaintiff,
DEFENDANT’S MOTION IN LIMINE
13 vs. TO PRECLUDE POLICE REPORT;
[PROPOSED] ORDER SUBMITTED
PEDRO BAUTlSTA; SAUL BAUTlSTA AND CONCURRENTLY HEREWITH
14
DOES 1 TO 100
Trial Date: Tuesday, October 09,
15 Defendants. 2018
/ Time: 9:00 a.m.
16 Loc: 501
17
TO THE COURT AND TO ALL PARTIES AND THEIR RESPECT|VE ATTORNEYS
18
OF RECORD:
19
Defendant hereby moves, in Iimine, for an order prohibiting allparties from
20
introducing as evidence, excluding any and allevidence, references to evidence, testimony
21 Report Local
or argument relating to any opinions reached or expressed inthe Police
22 Number 2014 12 0005 and written and illustrated content respecting property
Report its
23 damage, accident causation, vehicle movement, vehicle speeds, impact force, impact
24 speed, impact angles, vehicle trajectory, roadway measurements, roadway lines and
distance measurements, station lines, points of impact, points of rest, visual
25 demarcations,
Page 1
HOWELL MOTION IN LIMINE
estimations, time estimations, speed estimations, roadway conditions, damage
assessments, injury assessments, accident reconstruction, statements of persons.
Defendant submits this Motion simultaneously with an attempt to Meet and Confer
with plaintiff counsel, as trialis fast arriving on October 9, 2018. To the extent that the
Plaintiff stipulates to the subject matter of this Motion in Limine, Defendant will withdraw this
Motion in Limine and submit a Stipulation and Proposed Order.
l,TERENCE PHAN, Declare:
|am an attorney at law licensed to practice before allthe Courts of the State of
California, and an Associate Attorney in The Law Offices of Ann Marie DeFelice, assigned
attorneys for Defendant PEDRO BAUTISTA, SAUL BAUTISTA.
10 and fact'ual statements therein are true, based on my
I prepared this Motion, all
11 personal knowledge and work on this case.
12 l.
13 BRIEF STATEMENT OF THE FACTS
14 RELEVANT TO THE MOTION IN LIMINE
Testimony, evidence of, mention of Police Report Local Report Number 2014 12
15
0005 and the written and illustrated content therein, including testimony or argument
16
relating to any opinions reached or expressed in the Police Report Local Report Number
17
2014 12 0005 and its written and illustrated content respecting property damage, accident
18
causation, vehicle movement, vehicle speeds, impactforce, impact speed, impact angles,
19
vehicle trajectory, roadway measurements, roadway lines and demarcations, distance
20
measurements, station lines, points of impact, points of rest, visual estimations, time
21
estimations, speed estimations, roadway conditions, damage assessments, injury
22 assessments, accident reconstruction, statements of persons. are hearsay and lack
23 foundation. No party has conducted discovery or deposition ofany witnesses or police
24 officer and no accident reconstruction expert or biomechanist has been retained by the
25 parties.
Page 2
HOWELL MOTION IN LIMINE
Defendant submits this Motion simultaneously with an attempt to Meet and Confer
with plaintiff counsel, as trialis fast arriving on October 9, 2018. To the extent that the
Plaintiff stipulates to the subject matter of this Motion in Limine, Defendant willwithdraw this
Motion in Limine and submit a Stipulation and Proposed Order.
constitute hearsay and lack foundation and should be excluded from presentation
before the jury in the trialof this matter.
ll.
SUPPORTING LAW (MOTIONS IN LIMINE)
“Court's inherent powers: Authority for [Motions in Limine] . .. may be implied from
the court's inherent power to:
1O —“provide for the orderly conduct of proceedings before it”(CCP § 128(a)(3));
11 —“contro| itsprocess and orders so as to make them conform to law and justice"
12 (CCP § 128(a)(8));
13 —exclude irrelevant evidence (Evidence Code § 350);
—exc|ude evidence whose probative value is substantially outweighed by the
14
probability that itsadmission wi||consume undue time or create substantial danger of
15
undue prejudice, confusion of the issues, or mislead the jury (Evidence Code. § 352);
16
—hear and determine questions of admissibility of evidence out of the presence or
17
hearing ofthejury (Evidence Code. § 402(b))” CACIVEV CH. 4-F
18
"In addition to excluding highly prejudicial evidence, the court may instruct opposing
19
counsel to avoid any mention of the evidence inquestion during trialor inargument to the
20 persons under (counsel's associates, clients, witnesses, etc.)
jury; and to direct their control
21 likewise to avoid such mention. [L.A. Sup.Ct. Rule 8.92; see Grimshaw v.Ford Motor Co.
22 (1981) 119 CA3d 757. 793, 174 CR 348, 371—in death action resulting from exploding gas
23 tank on Ford Pinto, court instructed counsel not to mention any other Ford Pinto fires
without leave of court; and In re Charbonneau (1974) 42 CA3d 505, 507, 116 CR 153,
24
155—in product liabilitycase, P‘s attorney held in contempt for violating order not to
25
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HOWELL MOTION IN LIMINE
mention D's post accident changes in product design and recall of products]" CACIVEV
CH. 4-F.
“ "
Trial judges enjoy ‘broad authority’ over the admission and exclusion of evidence.
“
not expressly authorized by statute, but is within the trialcourt's
The motion in limine is
“inherent power to entertain and grant.’ ‘The scope of such motion is any kind of evidence
which could be objected to at trial,either as irrelevant or subject to discretionary exclusion
as unduly prejudicial.’ Its purpose isto avoid the unfairness caused by the presentation of
prejudicial or objectionable evidence to the jury, and the ‘obviously futile attempt to “unring
the bell.”
’ ”
(Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272,
288, 245 Cal.Rptr. 873.)
10 Ill.
11 SUPPORTING LAW — EXCLUSION 0F Police Report Local Report Number
12 2014 12 0005
A trial court may exclude otherwise relevant evidence when itsprobative value is
13
substantially outweighed by concerns of undue prejudice, confusion, or consumption of
14
time. (Evid. Code, 352; People v. Riggs (2008) 44 Ca|.4th 248, 290 [79 Cal. Rptr. 3d 648,
§
15
187 P.3d 363] (Riggs).)
16
Evidence should be excluded as unduIy prejudicial when itisof such nature as to
17
inflame the emotions of the jury, motivating them to use the information, not to logically
18
evaluate the point upon which itis relevant, but to reward or punish one side because of the
19
jurors' emotional reaction. In such a circumstance, the evidence isunduly prejudicial
20 because of the substantial likelihood the jury will use itfor an illegitimate purpose.‘ (Vorse v.
21 Sarasy (1997) 53 Cal.App.4th 998, 1008—1009 [62 Cal. Rptr. 2d 164].)” (People v. Doolin
22 (2009) 45 Cal.4th 390, 438—439 [87 Cal. Rptr. 3d 209, 198 P.3d 11].)
23 IV.
24
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HOWELL MOTION IN LIMINE
THE TRIAL COURT MUST NOT ALLOW INTRODUCTION INTO EVIDENCE OR
MENTION OF Police Report Local Report Number 2014 12 0005 IN THE COURT
ROOM
Testimony, evidence of, mention of Police Report Local Report Number 2014 12
0005 and the written and illustrated content therein, including testimony or argument
relating to any opinions reached or expressed in the Police Report Local Report Number
2014 12 0005 and its written and illustrated content respecting property damage, accident
causation, vehicle movement, vehicle speeds, impact force, impact speed, impact angles,
vehicle trajectory, roadway measurements, roadway lines and demarcations, distance
measurements, station lines, points of impact, points of rest, visual estimations, time
1O estimations, speed estimations, roadway conditions, damage assessments, injury
11 assessments, accident reconstruction, statements of persons, are hearsay and lack
Plaintiff must not be allowed to introduce at trial evidence or mention of
12 foundation.
testimony or argument relating to any opinions reached or expressed inthe Police Report
13
Local Report Number 2014 12 0005 and itswritten and illustrated content respecting
14
property damage, accident causation, vehicle movement, vehicle speeds, impact force,
15
impact speed, impact angles, vehicle trajectory, roadway measurements, roadway lines and
16
distance measurements, station lines, points of impact. points of rest, visual
demarcations,
17
estimations, time estimations, speed estimations, roadway conditions, damage
18
assessments, injury assessments, accident reconstruction, statements of persons
19
courtroom during trial proceedings.
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HOWELL MOTION lN LIMINE
Dated: October 1, 201 8 Law Offices of Ann Marie DeFeIice
I;
/
H
l
,— F/
j/‘f
JW' ’1,“
TERENCE PHAN
Attorney for Defendant,
PEDRO BAUTISTASAUL BAUTISTA
1O
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HOWELL MOTION IN LIMINE
Preview
Phan E-FILED Terence (SBN 289609) 10/9/2018 1:29 PM 11060 White Rock Road, Suite 250 Rancho Cordova, CA 95670 FRESNO COUNTY SUPERIOR COURT Telephone: 916-465—9965 By: C. York, Deputy Facsimile: 916-635-5296 Attorney for Defendant, PEDRO BAUTlSTASAUL BAUTlSTA FRESNO COUNTY SUPERIOR COURT UNLIMITED JURISDICTION 1o 11 KEREN FARLEY; JONATHAN FARLEY, CASE NO: 1BCECG03858 12 Plaintiff, DEFENDANT’S MOTION IN LIMINE 13 vs. TO PRECLUDE POLICE REPORT; [PROPOSED] ORDER SUBMITTED PEDRO BAUTlSTA; SAUL BAUTlSTA AND CONCURRENTLY HEREWITH 14 DOES 1 TO 100 Trial Date: Tuesday, October 09, 15 Defendants. 2018 / Time: 9:00 a.m. 16 Loc: 501 17 TO THE COURT AND TO ALL PARTIES AND THEIR RESPECT|VE ATTORNEYS 18 OF RECORD: 19 Defendant hereby moves, in Iimine, for an order prohibiting allparties from 20 introducing as evidence, excluding any and allevidence, references to evidence, testimony 21 Report Local or argument relating to any opinions reached or expressed inthe Police 22 Number 2014 12 0005 and written and illustrated content respecting property Report its 23 damage, accident causation, vehicle movement, vehicle speeds, impact force, impact 24 speed, impact angles, vehicle trajectory, roadway measurements, roadway lines and distance measurements, station lines, points of impact, points of rest, visual 25 demarcations, Page 1 HOWELL MOTION IN LIMINE estimations, time estimations, speed estimations, roadway conditions, damage assessments, injury assessments, accident reconstruction, statements of persons. Defendant submits this Motion simultaneously with an attempt to Meet and Confer with plaintiff counsel, as trialis fast arriving on October 9, 2018. To the extent that the Plaintiff stipulates to the subject matter of this Motion in Limine, Defendant will withdraw this Motion in Limine and submit a Stipulation and Proposed Order. l,TERENCE PHAN, Declare: |am an attorney at law licensed to practice before allthe Courts of the State of California, and an Associate Attorney in The Law Offices of Ann Marie DeFelice, assigned attorneys for Defendant PEDRO BAUTISTA, SAUL BAUTISTA. 10 and fact'ual statements therein are true, based on my I prepared this Motion, all 11 personal knowledge and work on this case. 12 l. 13 BRIEF STATEMENT OF THE FACTS 14 RELEVANT TO THE MOTION IN LIMINE Testimony, evidence of, mention of Police Report Local Report Number 2014 12 15 0005 and the written and illustrated content therein, including testimony or argument 16 relating to any opinions reached or expressed in the Police Report Local Report Number 17 2014 12 0005 and its written and illustrated content respecting property damage, accident 18 causation, vehicle movement, vehicle speeds, impactforce, impact speed, impact angles, 19 vehicle trajectory, roadway measurements, roadway lines and demarcations, distance 20 measurements, station lines, points of impact, points of rest, visual estimations, time 21 estimations, speed estimations, roadway conditions, damage assessments, injury 22 assessments, accident reconstruction, statements of persons. are hearsay and lack 23 foundation. No party has conducted discovery or deposition ofany witnesses or police 24 officer and no accident reconstruction expert or biomechanist has been retained by the 25 parties. Page 2 HOWELL MOTION IN LIMINE Defendant submits this Motion simultaneously with an attempt to Meet and Confer with plaintiff counsel, as trialis fast arriving on October 9, 2018. To the extent that the Plaintiff stipulates to the subject matter of this Motion in Limine, Defendant willwithdraw this Motion in Limine and submit a Stipulation and Proposed Order. constitute hearsay and lack foundation and should be excluded from presentation before the jury in the trialof this matter. ll. SUPPORTING LAW (MOTIONS IN LIMINE) “Court's inherent powers: Authority for [Motions in Limine] . .. may be implied from the court's inherent power to: 1O —“provide for the orderly conduct of proceedings before it”(CCP § 128(a)(3)); 11 —“contro| itsprocess and orders so as to make them conform to law and justice" 12 (CCP § 128(a)(8)); 13 —exclude irrelevant evidence (Evidence Code § 350); —exc|ude evidence whose probative value is substantially outweighed by the 14 probability that itsadmission wi||consume undue time or create substantial danger of 15 undue prejudice, confusion of the issues, or mislead the jury (Evidence Code. § 352); 16 —hear and determine questions of admissibility of evidence out of the presence or 17 hearing ofthejury (Evidence Code. § 402(b))” CACIVEV CH. 4-F 18 "In addition to excluding highly prejudicial evidence, the court may instruct opposing 19 counsel to avoid any mention of the evidence inquestion during trialor inargument to the 20 persons under (counsel's associates, clients, witnesses, etc.) jury; and to direct their control 21 likewise to avoid such mention. [L.A. Sup.Ct. Rule 8.92; see Grimshaw v.Ford Motor Co. 22 (1981) 119 CA3d 757. 793, 174 CR 348, 371—in death action resulting from exploding gas 23 tank on Ford Pinto, court instructed counsel not to mention any other Ford Pinto fires without leave of court; and In re Charbonneau (1974) 42 CA3d 505, 507, 116 CR 153, 24 155—in product liabilitycase, P‘s attorney held in contempt for violating order not to 25 Page 3 HOWELL MOTION IN LIMINE mention D's post accident changes in product design and recall of products]" CACIVEV CH. 4-F. “ " Trial judges enjoy ‘broad authority’ over the admission and exclusion of evidence. “ not expressly authorized by statute, but is within the trialcourt's The motion in limine is “inherent power to entertain and grant.’ ‘The scope of such motion is any kind of evidence which could be objected to at trial,either as irrelevant or subject to discretionary exclusion as unduly prejudicial.’ Its purpose isto avoid the unfairness caused by the presentation of prejudicial or objectionable evidence to the jury, and the ‘obviously futile attempt to “unring the bell.” ’ ” (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288, 245 Cal.Rptr. 873.) 10 Ill. 11 SUPPORTING LAW — EXCLUSION 0F Police Report Local Report Number 12 2014 12 0005 A trial court may exclude otherwise relevant evidence when itsprobative value is 13 substantially outweighed by concerns of undue prejudice, confusion, or consumption of 14 time. (Evid. Code, 352; People v. Riggs (2008) 44 Ca|.4th 248, 290 [79 Cal. Rptr. 3d 648, § 15 187 P.3d 363] (Riggs).) 16 Evidence should be excluded as unduIy prejudicial when itisof such nature as to 17 inflame the emotions of the jury, motivating them to use the information, not to logically 18 evaluate the point upon which itis relevant, but to reward or punish one side because of the 19 jurors' emotional reaction. In such a circumstance, the evidence isunduly prejudicial 20 because of the substantial likelihood the jury will use itfor an illegitimate purpose.‘ (Vorse v. 21 Sarasy (1997) 53 Cal.App.4th 998, 1008—1009 [62 Cal. Rptr. 2d 164].)” (People v. Doolin 22 (2009) 45 Cal.4th 390, 438—439 [87 Cal. Rptr. 3d 209, 198 P.3d 11].) 23 IV. 24 25 Page 4 HOWELL MOTION IN LIMINE THE TRIAL COURT MUST NOT ALLOW INTRODUCTION INTO EVIDENCE OR MENTION OF Police Report Local Report Number 2014 12 0005 IN THE COURT ROOM Testimony, evidence of, mention of Police Report Local Report Number 2014 12 0005 and the written and illustrated content therein, including testimony or argument relating to any opinions reached or expressed in the Police Report Local Report Number 2014 12 0005 and its written and illustrated content respecting property damage, accident causation, vehicle movement, vehicle speeds, impact force, impact speed, impact angles, vehicle trajectory, roadway measurements, roadway lines and demarcations, distance measurements, station lines, points of impact, points of rest, visual estimations, time 1O estimations, speed estimations, roadway conditions, damage assessments, injury 11 assessments, accident reconstruction, statements of persons, are hearsay and lack Plaintiff must not be allowed to introduce at trial evidence or mention of 12 foundation. testimony or argument relating to any opinions reached or expressed inthe Police Report 13 Local Report Number 2014 12 0005 and itswritten and illustrated content respecting 14 property damage, accident causation, vehicle movement, vehicle speeds, impact force, 15 impact speed, impact angles, vehicle trajectory, roadway measurements, roadway lines and 16 distance measurements, station lines, points of impact. points of rest, visual demarcations, 17 estimations, time estimations, speed estimations, roadway conditions, damage 18 assessments, injury assessments, accident reconstruction, statements of persons 19 courtroom during trial proceedings. 20 21 22 23 24 25 Page 5 HOWELL MOTION lN LIMINE Dated: October 1, 201 8 Law Offices of Ann Marie DeFeIice I; / H l ,— F/ j/‘f JW' ’1,“ TERENCE PHAN Attorney for Defendant, PEDRO BAUTISTASAUL BAUTISTA 1O 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 6 HOWELL MOTION IN LIMINE