Judge Rafael A. Ongkeko, Case BC700902 2022-07-27 Tentative Ruling

Note:
The court's tentative rulings, as posted, will not have the same formatting "look" as the court's original Word version.
A pdf version of the latter will be available in court to those appearing in person or by email upon request made to the clerk before the hearing for those appearing remotely.
Dept. D contact information:
Email: samdeptd@lacourt.org.
Phone: (310) 255-2483

MIL #8: PLAINTIFF’S MOTION IN LIMINE NO. 8 TO EXCLUDE EVIDENCE, TESTIMONY, AND/OR REFERENCE TO ANY APOLOGIES OR REMORSE EXPRESSED BY DEFENDANTS TO PLAINTIFF, OR OTHERS

TENTATIVE RULING: DENY as to statements made at the scene. DENY as to testimony on the subject of admitting liability. Defer to a specific trial objection to questioning going beyond that, but generally, one question regarding the driver’s personal feelings about the accident is appropriate and relevant to admitting liability for the driver’s negligent conduct and does not engender undue sympathy toward the driver or prejudice plaintiff.

MIL #9: PLAINTIFF’S MOTION IN LIMINE NO. 9 TO PERMIT A DISCUSSION REGARDING DAMAGES (I.E. SPECIFIC AMOUNTS) ON VOIR DIRE IN ACCORDANCE WITH C.C.P. § 222.5.

(1) Deny authority to mention a specific dollar figure during v.d. b/c no evidence yet, approaches preconditioning without reference to fairness, bias, or impartiality, and what evidence it may even be based on. Asks jurors to speculate, hypothesize, and commit without relevance to being fair or not. Suggest alternatives: Any upper limit, no matter the evidence? “substantial”, 7 figures OK, etc.

MIL #10: DEFENDANT CITY'S MOTION IN LIMINE NO. 10 TO PRECLUDE PLAINTIFF FROM SUGGESTING A PARTICULAR AMOUNT AS AN APPROPRIATE AWARD FOR NON-ECONOMIC DAMAGES

MIL #10: PLAINTIFF’S MOTION IN LIMINE NO. 10 FOR AN ORDER TO PRECLUDE MENTION OF ANY REPORTING, OR LACK THEREOF, OF PLAINTIFF’S CONDITION POST INCIDENT TO THE DMV

Need 402 to determine what is the question (and translation) that was unanswered? And is P’s failure to answer that question relevant? Is it even reportable and disqualifying? Who will say it is? Need foundation for what answer would trigger DMV action or is that a 352 issue?

Whatever relevance there may be to P’s credibility may be outweighed by answers to the above which would be unduly prejudicial, time-consuming, and cause confusion to the jury because this is not a driver ability case.

Fisk’s and Strickland’s failure to report to DMV is a likely GRANT unless D establishes the condition was reportable and disqualifying.

MIL #11: PLAINTIFF’S MOTION IN LIMINE NO. 11 FOR AN ORDER TO PRECLUDE MENTION OF PLAINTIFF’S 2019 AUTO V. PEDESTRIAN ACCIDENT WHERE HE WAS DRIVER AND STRUCK A PEDESTRIAN

TENTATIVE RULING: Fact that he was still driving is admissible. As far as the 2019 incident causing some of his claimed damages, that is defendant’s burden- we will need an adequate proffer and/or 402 from the defense regarding causation, not just speculation. Need to discuss limitations on what portions of the 2019 incident are relevant and subject to 352.

MIL #13: PLAINTIFF’S MOTION IN LIMINE NO. 13 TO PRECLUDE PERSONAL ATTACKS ON THE CHARACTER OR MOTIVES OF PLAINTIFF AND COUNSEL

TENTATIVE: Too general and very broad; defer to trial.

MIL #14: PLAINTIFF’S MOTION IN LIMINE NO. 14 TO EXCLUDE PLAINTIFF’S WORKER’S COMPENSATION RECORDS (from 2003-2008- Ex. 139)

TENTATIVE RULING: DENY, without prejudice to objections such as foundation, hearsay, and Sanchez. L shoulder and back are relevant to current condition and possible impeachment.

MIL #15: PLAINTIFF’S MOTION IN LIMINE NO. 15 TO EXCLUDE FACT OR AMOUNT OF SETTLEMENT ($15K) BETWEEN PLAINTIFF AND MIRIAM G. CENTENO

TENTATIVE RULING: GRANT. Agree no longer relevant. Yes, City has assumed any liability on Centeno’s behalf, but then mentioning she was, but no longer, a party would confuse the jury regarding why the City could still be liable.

MIL #1: DEFENDANT CITY’s MOTION IN LIMINE NO. 1 TO PRECLUDE PLAINTIFF FROM TESTIFYING AS TO HIS TRAUMATIC BRAIN INJURY UNDER THE DOCTRINE OF JUDICIAL ESTOPPEL

TENTATIVE RULING: DENY. Judicial estoppel not applicable. DMV application not done in a judicial or quasi-judicial proceeding. No evidence it was an affirmative position that he did not have TBI; just left blank. Not entirely inconsistent. Could have simply missed the DMV question, or misunderstood it, etc.

MIL #6: DEFENDANTS CITY 'S MOTION IN LIMINE NO. 6 PRECLUDING PLAINTIFF'S EXPERTS AND TREATING PHYSICIANS FROM TESTIFYING TO MEDICAL RECORD HEARSAY PURSUANT TO SANCHEZ

TENTATIVE RULING: Defer to trial. Medical records in evidence? Evidence independent of Fisk’s examination may come in.

MIL #7: DEFENDANT CITY’S MOTION IN LIMINE NO. 7 TO PRECLUDE PLAINTIFF FROM IMPLEMENTING THE "REPTILE THEORY" DURING TRIAL

TENTATIVE RULING: Too general. DEFER to trial without prejudice to raising objection to specific argument concerning attempts to replace the proper legal standards. If more closely aligned to Golden Rule/community or self-interest/self-protection argument, or preconditioning during voir dire, will sustain if an objection is made.

MIL #12: DEFENDANT CITY'S MOTION IN LIMINE NO. 12 TO EXCLUDE EVIDENCE OF MARCH 19, 2022 MRI OF PLAINTIFF (filed 3/29/22)

1. Deny as far as the “late” timing of the MRI- no longer prejudicial due to trial continuances..

2. However, because P makes an insufficient proffer, GRANT this MIL without prejudice to a 402.

Who will testify? If P can make an offer of proof which includes expected expert testimony regarding relevance of the mTBI, e.g., as substantively different from the previous ones, may not need a 402.

As a clinical tool, fMRI presumably can reasonably be relied upon as a basis for expert opinion to show changes from one MRI to another. The jury is the final arbiter of such evidentiary value.

MIL #16: CITY’S MIL #16 FOR AN ORDER PRECLUDING BRADLEY JABOUR, M.D. FROM TESTIFYING AT TRIAL (w/Decl. of Omid Jafari

Tentative ruling: DENY. Assuming Mobin has sufficient knowledge and experience in neurology and the treatment of neurological disorders to assist jury, the degree of his knowledge or lack of board certification goes to weight, not admissibility. There is an insufficient showing that Parsa’s and Mobin’s testimony are sufficiently similar to preclude Mobin’s as cumulative. Defer any such objections to trial.

MIL #14: DEFENDANT CITY’S MIL #14 TO EXCLUDE TESTIMONY OF JON LANDERVILLE AND/OR HIS POWERPOINT EXHIBIT

TENTATIVE RULING: Court to view the PPT before 402; what is offer of proof re Landerville’s opinions; determine whether 402 is necessary before his testimony. NO PPT to jury pending court’s ruling.

MIL #15: CITY’S MIL #15 FOR AN ORDER EXCLUDING PORTIONS OF EXPERT TESTIMONY RELATING TO OPINIONS NOT DISCLOSED AT THE EXPERT’S DEPOSITION (“KENNEMUR” MIL)

TENTATIVE RULING: DENY as non-specific, but w/o prejudice to Kennemur objection. [LODGE DEPOS?]

MIL #16: CITY’S MIL #16 FOR AN ORDER PRECLUDING BRADLEY JABOUR, M.D. FROM TESTIFYING AT TRIAL (w/Decl. of Omid Jafari