(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)
THE COURT SHOULD EXCLUDE EVIDENCE THE PROBATIVE VALUE OF WHICH IS SUBSTANTIALLY OUTWEIGHED BY ITS PREJUDICIAL IMPACT OR HAS THE RISK OF MISLEADING OR CONFUSING THE JURY
Evidence Code section 352 gives the Court discretion to exclude evidence if its admission will necessitate the undue consumption of time, or if its probative value is substantially outweighed by a substantial danger of undue prejudice, confusion of issues and misleading the jury. (Evidence Code §352.) Pursuant to Evidence Code section 352, the court should weigh the probative value of proffered evidence against the probability that it will create a substantial danger of undue prejudice. (People v. Murphy (1979) 8 Cal.3d 359.) If the Court finds that the probative value of the proffered evidence is weak and a danger of undue prejudice is strong, then it should rule that such evidence is inadmissible. (People v. Stanley (1967) 167 Cal.2d 812.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
There are a number of different factors with which to determine the strength or weakness of the probative value of evidence. Among the factors which the court should consider are the following:
Its materiality;
The strength of its relationship to the issue upon which it is offered;
Whether it goes to a main issue or merely a collateral one; and
Whether it is necessary to prove the proponents case or merely cumulative to other available and sufficient proof.
(Burke v. Almaden Vineyards, Inc. (1978) 86 Cal. App.2d 750.)
]]> Among factors to be considered by the trial judge in exercising his discretion as to admission of a prior felony conviction for impeachment purposes, are its nearness or remoteness, its bearing on credibility, the similarity between the conduct on which the conviction rests and the conduct allege in the current case, and the effect of a refusal by defendant to testify resulting from his fear of impeachment by the conviction. (People v. Beagle (1972) 6 Cal.3d 441; People v Rist (1976) 16 C3d 211, 127 Cal Rptr 457, 545 P2d 833.)There is no unqualified right under Evidence Code section 788 to impeach a witness with evidence of a prior felony conviction if, under modem standards, the trial court determines that the nature of the felony has no bearing whatever on credibility and that, under Evidence Code section 352 granting the trial judge discretion to exclude otherwise admissible evidence, the probative value of the impeachment evidence is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice. (People v. Carr (1973) 32 Cal.App.3d 700.) The trial judge has greater latitude to to exclude evidence of prior felony convictions involving defendants than for other witnesses. (People v. Carr (1973) 32 Cal.App.3d 700.) (See Part 3 of 3.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
]]>(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)
Defendants’ Motion In Limine to Exclude Reference to 30-Year-Old Prior Felony Conviction
Defendants Victor Lee and XYZ Car Rental Of Sacramento hereby move this court, in limine, before jury selection at the trials commencement for an order instructing plaintiff, his counsel, and each and every one of plaintiffs witnesses, not to mention, interrogate on, or in any other manner convey to the jury whether during voir dire, opening statement, testimony, final argument, or otherwise, any reference to or evidence of defendant Victor Lee’s 30-year-old felony conviction. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
This motion is based on the ground that the probative value on credibility of said felony conviction is outweighed by the risk of undue prejudice and that argument about or reference to or admission of such evidence regarding defendant is not relevant and should be precluded on the ground that its entry would be more prejudicial than probative.
THE TRIAL COURT POSSESSES THE INHERENT POWER TO GRANT MOTIONS IN LIMINE AND SUCH MOTIONS ARE A WELL ESTABLISHED METHOD OF EXCLUDING INADMISSIBLE EVIDENCE
Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.
]]> A MOTION IN LIMINE MAY BE USED TO EXCLUDE ANY EVIDENCE TO WHICH COUNSEL COULD OBJECT AT TRIAL IS IRRELEVANT OR IS SUBJECT TO THIS DISCRETIONARY EXCLUSION BECAUSE OF ITS UNDULY PREJUDICIAL EFFECTClemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.
NO EVIDENCE IS ADMISSIBLE EXCEPT FOR RELEVANT EVIDENCE.
If a prior felony conviction does not involve the character trait of truthfulness, it must be excluded as irrelevant at the outset (Evidence Code section 350). (See Part 2 of 3.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
]]>It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.
The Evidence Presented by Plaintiff at Trial Constitutes "Significant Evidence."
During the course of this trial, there was significant evidence with regard to the brain injury, and other physical injuries, suffered by Sandra White. Every medical expert, plaintiff and defense, agreed that she did indeed suffer a traumatic brain injury. Further, the testimony of plaintiff’s experts and defendant's experts as to the extent of Ms. White's injuries was not identical, but that is surely to be expected. The mere fact that there was contradicting expert opinion evidence does not diminish the solid value of the evidence presented. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Further, plaintiffs provided significant evidence not only by way of expert opinion, but also through testimony of Ms. White's family that was consistent with what was seen on the "sub rosa" videotape. There was no significant "contradiction," as defendant suggests, that would be sufficient to support a granting of a JNOV. Rather, plaintiff put on substantial evidence in support of her injuries and the verdict in this case. Even defendant's experts confirmed that Ms. White had a brain injury and multiple physical injuries as a result of this collision. Thus, this court should deny defendant's Motion for a Judgment Notwithstanding the Verdict.
]]> CONCLUSIONBased on the foregoing, plaintiff respectfully requests this court deny defendant's Motion for Judgment Notwithstanding the Verdict.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.
In Hewitson, and similarly in Rives, the court concluded that the "trial court's determination of the value of a particular asset [closely held corporation] is a factual one and, if there is substantial evidence to support it in the record, the determination must be upheld on appeal." Hewitson, 142 Cal.App.3d at 885. The court continued its explanation by stating that if such determination is based solely or in large part on the opinion of an expert, the determination will not be upheld on appeal, unless the opinion satisfies the standard of admissibility set forth in Evidence Code section 801. Id. (citing In re Marriage of Rives (1982) 130 Cal.App.3d 138, 149-151; cf.. Solis v. Southern Cal. Rapid Transit Dist. (1980) 105 Cal.App.3d 382, 389-390). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The Hewitson court then goes on to explain that Evidence Code section 801, in dealing with the admissibility requirements of opinion testimony by an expert witness, provides in subdivision (b) thereof, three separate but related tests that a matter must meet to serve as a proper basis for an expert opinion. First, the information used must come from (a) the witness' personal observation, or (b) the witness' personal knowledge, or (c) an assumption of facts finding support in the evidence. Second, the matter about which the opinion is based must be of a type upon which the expert may reasonably rely. Third, an expert may not base his opinion upon any matter held to be improper as the basis of an expert opinion by constitutional, statutory, or decisional law. Id. (citing People v. Plasencia (1983) 140 Cal.App.3d 853, 857).
]]> Here, defendant has failed to establish by any means how the sub rosa videotape contradicts or somehow discredits the testimony of any of plaintiff’s experts based on any legal criteria. Defendants have not explained if or how these experts failed to rely on personal observation, personal knowledge, or an assumption of facts finding support in the evidence. Obviously, the sub rosa video was not the only evidence available to the jury, nor can an assumption be made that plaintiff’s experts’ opinions would have been altered in any way based on a video depicting activities Ms. White's own family testified. that she on occasion was able to participated in and/or perform. Further, defendant's reliance on two family law cases, related to asset value disputes is markedly distinguishable from a civil matter wherein medical experts base their opinions on examination of a plaintiff and provide an opinion based on their background, expertise and experience, as was the case here. Further, defendants have relied on court opinions regarding expert valuations of tangible assets, which is markedly divergent from the valuation of a person's future needs of a medical nature, as explained. (See Part 10 of 10.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.
The mere fact that plaintiff's experts had no knowledge of a video clip from a couple of minutes out of one day in Sandra White's life that was six months prior to the trial in this matter does not discredit or otherwise diminish the evidence, before the jury that determined Ms. White's future care needs. While defendant argues that plaintiff’s experts' opinions were "based upon improper or unwarranted matters," and as such the "judgment should be reversed," defendant relies solely on the "sub rosa" videotape that was played before the jury.
The twelve jurors in this matter that found in favor of Sandra White also saw this video and had the opportunity to weigh the credibility of both plaintiff’s experts and defendant's experts in light of all the evidence, including the "sub rosa" videotape. This court should not now usurp that function and make credibility determinations and weigh evidence, which is contrary to the function of the court when evaluating a motion for JNOV. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Defendant's Analogy Is Easily Distinguished From this Case
Defendant provides an analogy by referencing In re Marriage of Hewitson and In re Marriage of Rives as support for the proposition that plaintiff’s experts' testimony does not constitute substantial evidence.
]]> Def. Mot. at 7/1-5 (citing Hewitson (1983) 142 Cal.App.3d 874; citing Rives (1982) 130 Cal.App.3d 138). Defendant cites these two cases, which are a family law cases stemming from marriage dissolution, for the proposition that an expert's testimony based on "improper" or "unwarranted" matters means the opinion is not supported by substantial evidence. Noably, defendant fails to identify either the Hewitson or Rives court's reasoning for such a proposition.Defendant cites these two cases, which are a family law cases stemming from dissolution of marriage, for the proposition that an expert's testimony based on improper or unwarranted matters means the opinion is not supported by substantial evidence. Defendant fails to identify either the Hewitson or Rives court's reasoning for such a proposition. (See Part 9 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
]]>It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.
However, plaintiff's experts testified not only to plaintiffs physical limitations, but also to her traumatic brain injury and to her continued future need for care in a supportive environment. Even defendant's medical and neurological experts, during their trial testimony, agreed that plaintiff Sandra White did in fact suffer a traumatic brain injury. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Regarding defendant's seven purported "false assumptions" that supposedly make the evidence presented in this case "insignificant," plaintiff responds as follows:
Not one of plaintiff's witnesses was aware of the "sub rosa" video prior to their testimony. Despite defendant's contention that the sub rosa contradicts the weight of the evidence, plaintiff’s family testified 1) that plaintiff was able to leave the house by herself on occasion and in fact had confusedly wandered in the neighborhood on occasion; 2) that plaintiff was able to dress herself on occasion, but more frequently than not needs assistance; 3) that plaintiff could move her arm somewhat, and that her movement and rotation in her left arm had reduced over recent months; 4) that plaintiff required supervision and was not the same since the collision and that the family tries to watch her as much as they can; 5) that plaintiff could walk unassisted on occasion, having good days and bad days.
]]> Further, plaintiff’s experts testified that plaintiff’s future care needs would range from a level 2 to level 3 environment, which is contrary to Defendant's motion papers that suggest all evidence proffered by plaintiff suggested she would need no less than 24-hours a day, every day care. Further, plaintiff’s expert Jan Black testified that Ms. White future surgical needs were suggested, but yet unknown pending further testing.Defendant also contends that a false assumption relied on by plaintiff’s experts is that plaintiff would not be allowed to smoke; however, whether or not plaintiff smokes or is allowed to smoke has no bearing on this case. Further, defendant contends that a false assumption relied on by plaintiff’s experts is that plaintiff could not conduct a transaction by herself, relying on the "sub rosa" videotape as some sort of defining proof that plaintiff in fact can conduct transactions. However, since the video shows no more than an exchange without any verifiable source to indicate what was actually taking place, it is more than speculation to suggest that plaintiff’s experts’ opinions would somehow be changed by these few seconds of videotape. (See Part 8 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.
THE VERDICT WAS SUPPORTED BY SUBSTANTIAL EVIDENCE
Defendant contends that a miscarriage of justice will be promoted if the verdict stands and further contends that the verdict is not based upon substantial evidence. Defendant's contention is plainly wrong for several reasons.
First, defendant does not challenge the finding of liability in this matter and is thus not entitled to a JNOV in that regard. Further, defendant suggests that because plaintiff’s experts were not aware of the sub rosa videotape at the time of their testimony, and that "sub rosa" videotape simply wipes away any and all evidence of injuries to plaintiff Sandra White. However, plaintiff presented evidence that was sufficient to "reasonably inspire confidence," and support the verdict, as such defendant is not entitled to a JNOV as to the damage award and defendant's JNOV motion should be denied in its entirety. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Defendant Erroneously Contends that Plaintiffs Experts Relied on False Assumptions
Defendant argues that plaintiffs experts relied on false assumptions, including 1) that plaintiff was unable to leave the house by herself; 2) that plaintiff was unable to dress herself; 3) that plaintiff could not move her arm and needed shoulder surgery; 4) that plaintiff required 24-hour supervision; 5) that plaintiff could not walk unassisted; 6) that plaintiff would not be allowed to smoke; and 7) that plaintiff could not conduct a transaction by herself. Defendant suggests that the "sub rosa" video contradicts all of these alleged false assumptions. (See Part 7 of 10.)
It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.
A party may rely upon "reasonable inferences" from the evidence to support a verdict. Hauter, 14 Cal.3d at 110. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established. Cal. Evid. Code, § 600; See also Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21. Further, in evaluating a JNOV notion, any conflicting evidence is resolved against the moving party; and the party in whose favor the verdict was rendered is entitled to the benefit of every favorable inference which may reasonably be drawn from the evidence and to have all conflicts in the evidence resolved in his favor. Castro v. State of California (1981) 114 Cal.App.3d 503 (emphasis added); see also Fountain Valley Chateau Blane Homeowner's Ass'n v. Dept. of Veterans Affairs (1998) 67 Cal.App.4th 743. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Further, a judgment notwithstanding the verdict can be sustained only when it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it, or the trial court would be compelled to set it aside as a matter of law. Moore v. San Francisco (1970) 5 Cal. App. 3d 728, 733-734 (referencing Palmer v. Agid (1959) 171 Cal.App.2d 271). A JNOV motion must be denied if substantial evidence supports the verdict. Begnal v. Canfield Assocs., Inc. (2000) 78 Cal.App.4th 66; Campbell v. Cal-Gard Surety Svs., Inc. (1998) Cal.App.4th 563; Palm Medical Group, Inc. v. State Comp. Ins. Fund (2008) 161 Cal. App. 4th 206, 218.
]]> In the instant case, defendant erroneously argues that a miscarriage of justice has occurred, without presenting adequate justification or contrary evidence. Defendant suggests that no evidence was presented that would be of solid value or that would "reasonably inspire confidence" to support the verdict; this contention is unsupported and misleading. In fact, defendant provides no valid argument to support this conclusion and instead urges this court to weigh the evidence and make credibility determinations regarding specific witnesses, which is improper. As such, plaintiff respectfully requests this court deny defendant's motion for judgment notwithstanding the verdict. (See Part 6 of 10.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.
In its case in chief, the City presented testimony of its medical experts, Christine Jones, M.D, Barry Stein, M.D., and David Hernandez, M.D. The City's accident reconstructionist, Scott Black, also testified. Additionally, defendant City played for the jury a "sub rosa" videotape of plaintiff Sandra White. The defendant City, however, did not call its designated experts David Hall (economist), Gene Perry (life care planner), or Charles Small, Ph.D. (neuropsychologist).
The jury in this matter returned a unanimous verdict in favor of the plaintiff, Sandra White, in the amount of $6,872,001.00, $426,636.00 for past economic loss and $6,445,365.00 for future economic loss. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
LEGAL STANDARD FOR A JUDGMENT NOTWITHSTANDING THE VERDICT
A Judgment Notwithstanding the Verdict ("JNOV") challenges the legal sufficiency of the evidence, essentially asking whether the evidence was sufficient to prove the claims or defenses asserted and now embodied in the jury's verdict. See Hauter v. Zogarts (1975) 14 Cal.3d 104; Clemmer v. Harford Ins. Co. (1978) 22 Cal.3d 865. For purposes of a JNOV, all evidence supporting the verdict is presumed true, making the issue whether the facts, when presumed true, constitute a prima facie case or defense as a matter of law. Moore v. San Francisco (1970) 5 Cal.App.3d 728; Fountain Valley Chateau Blanc Homeowner's Ass'n v. Dept. of Veterans Affairs (1998) 67 Cal.App.4th 743.
]]> The trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict. The trial judge cannot weigh the evidence, or judge the credibility of witnesses. If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied. Hauter, 14 Cal.3d at 110 (citing Jones v. Evans (1970) 4 Cal.App.3d 115; Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal.App.2d 504; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, Knight v. Contracting Engineers Co. (1961) 194 Cal.App.2d 435; McCown v. Spencer (1970) 8 Cal.App.3d 216; Hozz v. Fielder (1959) 167 Cal.App.2d 197; Brandenburg v. Pac, Gas & Elec. Co. (1946) 28 Cal.2d 282). (See Part 5 of 10.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
As a result of the impact severity, Ms. White was knocked to the other side of the vehicle, despite her use of the passive restraint system within the vehicle. She was rendered unconscious and was in a coma for many days following the crash. She suffered a severe brain injury, cracked hip bones, a cracked skull and subdural hematoma, large lacerations on her head, a ruptured spleen, and many other related serious and life threatening injuries. She spent roughly the next two months in hospitals and in rehabilitation. Eventually she suffered gaping wounds in her buttocks, leaving her disfigured. Further, testimony was given that showed Ms. White was rendered permanently brain damaged by this avoidable collision.
Prior to this catastrophic car crash, Sandra White, a mother and grandmother, had a functional life filled with the typical array of ups and downs. Testimony was given that prior to this collision, Ms. White took care of her parents, enjoyed friends, and had relatively good health. She did have anxiety problems and, according to the experts, had mental illness in the form of schizophrenia. Yet she was functional and lived independently. Now, she needs help with most daily tasks and requires supervision. When she left the nationally renowned rehabilitation center in Roseville, California, Universal Trauma Rehabilitation, she developed many life survival skills so she could re-integrate into the world with the help of others. But she still was a danger to herself and others, easily confused, easily fatigued, and in constant pain. She requires assistance from skilled nurses.
]]> Sandra White has been fully evaluated by many top medical experts, including psychiatrist Hastings Greene, M.D., neuropsychologist Jeffery Hill, Ph.D., and neuropsychiatrist Lester Downey, M.D., and has had a life care plan developed by Jan Jones, a highly respected life care planner in the Sacramento area. Plaintiff’s experts testified that Sandra White's future medical care costs totaled $8,636,251.00, and that Ms. White's past medical expenses totaled $426,636.00. (See Part 4 of 10.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, Folsom, El Dorado Hills, West Sacramento, or Elk Grove. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
From his own testimony, Mr. Black froze, bringing his vehicle to a stop as it straddled the #2 lane (slow lane) on the Highway 50 westbound, directly in the path of travel of Officer Smith. Smith then slammed on the brakes and tried to steer away from the vehicle in his path by turning his wheel to the right, then skidding. Officer Smith left two parallel skid marks. Smith swerved and braked to avoid Black's Impala then slammed directly into the side of Ms. White's 1995 Nissan Altima. The impact was so severe, it crushed the vehicle to the midline of the occupant compartment; she was hit at 30-40 m.p.h. at impact. Only five inches of metal on the side of her vehicle stood between her and the oncoming battering ram of the front end of the police vehicle. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
During the trial, counsel stipulated to the fact that Ms. White was not in any way at fault for the collision. The stipulation was read to the jury. The jury returned a plaintiff’s verdict, determining that Officer Smith was 55% at fault for this collision and that Ken Black was 45% at fault for the cause of the collision. Defendant has not challenged this finding by way of defendant's Motion for Judgment Notwithstanding the Verdict. (See Part 3 of 10.)
It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, Folsom, El Dorado Hills, West Sacramento, or Elk Grove.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
This opposition by plaintiff is made and based on the Memorandum of Points and Authorities attached hereto, the evidence presented at the trial in this matter, the reporters' transcripts of the trial proceedings, and upon such argument and further evidence as may be presented at the hearing thereof. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
MEMORANDUM OF POINTS & AUTHORITIES
INTRODUCTION
On September 9, 2005, a completely avoidable high-speed collision between two vehicles occurred on Highway 50 at the onramp of Watt Avenue shortly before midnight. Sacramento law enforcement officer William Smith was rocketing down the road, eastbound, with two county probation officers in his vehicle, returning from a police matter in an unrelated incident. Smith was not authorized to be speeding, and he testified he had no right to do so. According to Smith, he was not driving in an emergency fashion, or otherwise permitted to be operating under "Code 3" conditions. Therefore, it is undisputed that he had, at all times relevant, an obligation to adhere to the same rules of the road as a motor vehicle operator as any other citizen.
]]> As Officer Smith approached the intersection of Watt Avenue that evening, traveling well over the posted speed limit (at least, pre-skid), Ken Black was driving slowly as he waited to enter Highway 50. He intended to traverse the two slowest lanes of travel and enter the fast lane. According to Mr. Black, he nudged his vehicle into the entrance lanes to gain a line of sight to his left, and although he saw the oncoming Smith ploice vehicle, it appeared far enough away that he felt he could safely start the process of making his entrance. Mr. Black’s vehicle, a white 2004 Chevrolet Impala, started moving and all of a sudden he perceived the oncoming police vehicle traveling at an extremely high rate of speed. (See Part 2 of 10.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
]]>It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.
DR. BLACK’S RELIANCE ON CASES AFTER JUDGMENT OR VERDICT IS MISPLACED - PLAINTIFF NEED NOT PROVE THAT HE SHOULD BE AWARDED PUNITIVE DAMAGES AT THE PLEADINGS STAGE OF THE LITIGATION
Dr. Black relies on Ebaugh v. Rabkin, (1972) 22 Cal.App.3d 891, which is not applicable to plaintiff's First Amended Complaint. Ebaugh concerned the reversal of a jury's award of punitive damages because the evidence was insufficient to support the verdict for punitive damages against the employee and employer. There was also prejudicial error because one of the jury instructions permitted punitive damages against the employer if it found the employee was acting in a willful, reckless or wanton manner without regard to the employer's conduct in directing or ratifying the employee's actions. Id. at 895-896. Ebaugh does not apply to this stage of the litigation since it was an appeal of a jury verdict at trial. The standard for meeting the burden of proof to overturn a jury verdict is certainly different from the notice pleading requirements of California law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Dr. Black cites the following cases, all after judgment, verdict or nonsuit, which do not support granting her motion to strike since the cases do not concern the pleadings stage of litigation: American Airlines, Inc. v. Sheppard, Muffin, Richter & Hampton (2002) 96 Cal.App.4th 1017; Cloud v. Casey (1999) 76 Cal.App.4th 895; Tomaselli, 25 Cal.App.4th 1269; Mock v.-Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306; Roth, 185 Cal.App.2d 676; Fick, 98 Cal.App.2d 683; Spencer v. San Francisco Brick Co. (1907) 5 Cal.App. 127.
]]> Since plaintiff is clearly entitled to seek punitive damages against Dr. Black under Cal. Civ. Code § 3294, and since Mr. Wong has pled facts sufficient to allege that Dr. Black acted in a manner that justifies a punitive damages award, defendant’s motion to strike both the punitive damages allegations and the prayer for punitive damages is not supported in law.CONCLUSION
For the foregoing reasons, plaintiff respectfully requests that thecCourt deny defendant's Motion to Strike Punitive Damages from plaintiff's First Amended Complaint. Should the court he inclined to strike any portions of the complaint, plaintiff prays for leave to amend. The same liberal policy re amendment of pleadings applies as on sustaining demurrers. Weil & Brown, Civil Procedure Before Trial, § 7:203. Therefore, as long as the defect is correctable, an amended pleading will usually be allowed. Id. See also, Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 168 [relying on C.C.P § 576, which authorizes the court to allow amendment of pleadings at any time in furtherance of justice. ]
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.
PUNITIVE DAMAGES ARE PERMISSIBLE IN THIS NEGLIGENCE ACTION
The California Supreme Court has determined there are circumstances under which punitive damages can be awarded in unintentional tort actions. Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004. In particular, the Supreme Court has upheld punitive damages in cases of negligent driving. See Peterson v. Superior Ct. (1982) 31 Cal.3d 147; Taylor v. Superior Ct. (1979) 24 Cal.3d 890, 894.
In Taylor, the Supreme Court explained the availability of punitive damages to plaintiffs in motor vehicles tort actions:
A conscious disregard of the safety of others may constitute malice within the meaning of Section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully [sic] and deliberately failed to avoid those consequences. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Id. at 895. (emphasis added.) Taylor and Peterson are directly applicable to this case. Plaintiff's prayer for punitive damages, which is based on Dr. Black’s awareness of the probable dangerous consequences of operating a vehicle under fatigue and while asleep and her actions of deliberately failing to avoid the dangerous consequences by driving in a fatigued state, is undeniably supported by current California law.
]]> Plaintiff has properly pled that defendant's actions were malicious and oppressive. The allegations are sufficient. Plaintiff need not prove at this stage that defendant was malicious or oppressive at this pleading stage of the litigation. This is not a motion for summary judgment.For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.
The First Amended Complaint does not contain mere allegations that the defendant's actions were carried on with willful and conscious disregard of the rights of others. In this regard, Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 and Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 163 are inapposite to the present case. Unlike Brousseau and Grieves, Plaintiff did not merely allege that defendant's actions were "willful" or "malicious." Plaintiff refrained from making the sort of conclusory arguments that were scorned in Brousseau and Grieves, the claims for punitive damages in Brousseau and Grieves were not based on specific facts. In this case, plaintiff pled approximately 4 pages of detailed facts specifically alleging Dr. Black acted without regard for the safety of others in her operation of a vehicle while sleeping. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
As alleged throughout the First Amended Complaint, Dr. Black was incompetent and unfit to safely operate a vehicle because she was fatigued. From her residency training, she knew that she was a foreseeable threat to the health and safety of the public if she drove in a fatigued or sleepy condition. She deliberately was disregarding the high probability that she would fall asleep behind the wheel and cause permanent harm to another person. Despite her acute knowledge of the high risk of injuring someone with the vehicle, Dr. Black consciously chose to drive home while in a fatigued, sleep-deprived and exhausted condition. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.