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Copy of Limine Financial Evidence Wealth of Heirs Financial

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 3                                                          SUPERIOR COURT OF THE STATE OF CALIFORNIA
 4                                                                 IN AND FOR THE COUNTY OF RIVERSIDE
 5

 6   JOHN DOE, ADULT SON A, ADULT SON B,                                               CASE NO. XXXXXX
     ADULT DAUGHTER,
 7                                                                                     PLAINTIFFS’ MOTION IN
                                              Plaintiffs,                              LIMINE NO. 14: TO EXCLUDE
 8                                                                                     FINANCIAL AND RELATED
                         v.                                                            EVIDENCE
 9
     ROE DEFENDANT, COMPANY X, ET AL.,
10
                                              Defendants.
11

12

13

14   TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD:

15                       Plaintiffs John Doe, Adult Son A, Adult Son B, and Adult Daughter move for an order in

16   limine to exclude any evidence, references to evidence, testimony, or argument relating to (1)

17   John Doe’s income from the family business information that he earned in the years before his

18   wife’s death; (2) John Doe’s earning as the surviving spouse, and any inheritance from decedent

19   Jane Doe’s estate; and (3) any tax implications of damages, and that the Court further order

20   counsel to instruct all witnesses as to the same. This evidence is irrelevant and unduly prejudicial.

21                       Plaintiffs make this motion under California Evidence Code §§ 350 and 352, and

22   California case law cited below.

23                       Plaintiffs base this motion on this notice of motion, the supporting memorandum, the

24   pleadings and papers on file in this action, and upon such evidence and argument as may be

25   presented before or at the hearing of this matter.

26                                                                               Respectfully submitted,

27
28


                                                                                     -1-
                PLAINTIFFS’ MOTION IN LIMINE NO. 14: TO EXCLUDE FINANCIAL AND RELATED EVIDENCE
     {Copy of Limine 14. Financial Evidence.Wealth of Heirs.DOC}
 1                                                          MEMORANDUM OF POINTS AND AUTHORITIES
 2                                                                    I.        Relevant Facts
 3                       This personal-injury and wrongful-death action arises out of a motor-vehicle collision.
 4   Roe Defendant was driving [at confidential location]. He was following a line of big rigs at about
 5   55 mph when he suddenly made a left turn, crossing into the southbound lane directly in front of
 6   a motorcycle ridden by John Doe, with his wife Jane seated behind him as a passenger. John saw
 7   Roe Defendant’s car turn in front of his motorcycle and braked, but the collision was
 8   unavoidable. The motorcycle struck the right rear side of Roe Defendant’s car. John suffered
 9   severe orthopedic injuries. Jane was killed.
10                       The evidence will show that John and Jane Doe were business partners for the 27 years
11   immediately preceding her death. Their company, known as Doe Services Ltd. (DSL),
12   specialized in directional drilling, and serviced residential and industrial customers in the
13   Edmonton area. Since 1981, Jane owned 49% of the shares and John owned 51%.
14                       The Does built a successful and profitable business together. While the evidence will
15   show that Jane’s income varied over the years, DSL flourished during the last five years of her
16   Jane’s life due to her efforts. For 2003-2007, Jane earned an average of $307,211 per annum. In
17   the year before Jane’s death in 2007, she earned $658,180. Clients and colleagues will call Jane
18   the “backbone” of the business, as she was responsible for marketing, business planning,
19   customer service, and cost analysis.
20                       John Doe, who was and is in charge of field operations for the company, earned identical
21   sums. Upon Jane’s death, John inherited her 49% of the shares of DSL. Because the company
22   continued to thrive after Jane’s death, John has made more money after Jane’s death that he
23   earned when she was alive. Plaintiffs believe defendants may seek to introduce evidence of John
24   Doe’s earnings—both pre- and post-accident—to persuade the jury to discount his damages.
25   Defendants may also seek to introduce evidence concerning the income tax consequences of any
26   damage award.
27                                                                         II. Legal Analysis
28   A.                  Evidence of John Doe’s pre-accident earnings is irrelevant and unduly prejudicial.


                                                                                    -2-
                PLAINTIFFS’ MOTION IN LIMINE NO. 14: TO EXCLUDE FINANCIAL AND RELATED EVIDENCE
     {Copy of Limine 14. Financial Evidence.Wealth of Heirs.DOC}
 1                       Evidence Code section 350 states, “No evidence is admissible except relevant evidence.”
 2   Relevant evidence is defined by Evidence Code section 210 as “having any tendency in reason to
 3   prove or disprove any disputed fact that is of consequence to the determination of the action.”1
 4   Evidence Code § 352 provides that “[t]he court in its discretion may exclude evidence if its
 5   probative value is substantially outweighed by the probability that its admission will … create
 6   substantial danger of undue prejudice, of confusion the issues, or of misleading the jury.”
 7                       “It is ... the general rule that in a wrongful death action evidence of the [heir’s] wealth or
 8   poverty is inadmissible.”2 This rule is based on sound policy because such evidence has little
 9   logical relevancy, is highly prejudicial, and if admitted, would permit the defendant who
10   wrongfully caused the death of another to fortuitously benefit and receive a windfall because of
11   the plaintiff-heir’s financial well-being.3
12                       Here, plaintiff John Doe’s financial condition, as revealed by his pre- and post-accident
13   income, is absolutely irrelevant and inadmissible. Nearly seventy years ago, the Court of Appeal
14   stated:
15                       Undoubtedly it is the established law in California that in [a wrongful-death]
                         action, evidence of the financial condition as to either poverty or affluence of…
16                       heirs-at-law is clearly immaterial and inadmissible. The measure of damages in
                         such case is what the heirs were receiving at the time of the death of the deceased
17                       and what such heirs would have received had decedent lived. It is the destruction
                         of their expectations in this regard that the law deals with and for which it
18                       furnishes compensation.4
19                       This rule has not changed in the intervening years.
20

21

22                       1
              See People v. Kelly (1992) 1 Cal.4th 495, 523 [only relevant evidence is admissible];
23   Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1262-1263 [exclusion of irrelevant witness
     testimony]; People v. Keating (1981) 118 Cal.App.3d 172, 179-180 [court has no discretion to
24   admit irrelevant evidence]; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853 [relevant
     evidence must tend logically, naturally, and by reasonable inference to establish a material fact].
25                       2
             Webb v. Van Noort (1966) 239 Cal.App.2d 472, 479; and see McLaughlin v. United
     Railroads (1915) 169 Cal. 494, 498.
26
                         3
               See Fox v. Pacific Southwest Airlines (1982) 133 Cal.App.3d 565, 572; Cherrigan v.
27   City etc. of San Francisco (1968) 262 Cal.App.2d 643, 650-652; Johnson v. Western Air Exp.
     Corp. (1941) 45 Cal.App.2d 614, 622.
28                       4
                             Johnson, supra, 45 Cal.App.2d at p. 622.

                                                                     -3-
                PLAINTIFFS’ MOTION IN LIMINE NO. 14: TO EXCLUDE FINANCIAL AND RELATED EVIDENCE
     {Copy of Limine 14. Financial Evidence.Wealth of Heirs.DOC}
 1   B.                  Evidence of John Doe’s post-accident earnings and inheritance is irrelevant and
                         unduly prejudicial.
 2

 3                       For more than a century, the standard for computing loss of financial support in wrongful-
 4   death actions has been simple and straightforward. A jury should “determine the amount that the
 5   deceased would in all reasonable probability have earned in the years yet remaining to him, and,
 6   deducting from this the amount which he would have reasonably required for his own personal
 7   use and maintenance; give a verdict which would pecuniarily compensate the heirs.”5
 8                       In 1915, the California Supreme Court when presented with the choice of allowing all
 9   post-death circumstances, some post-death circumstances, or none at all in calculating wrongful
10   death damages chose the so called “American Rule” that measures the damages by the situation
11   existing at the time of the act causing death and not by events occurring after the act.6 This rule
12   has been rigidly adhered to in California, and may be found in numerous cases and in the basic
13   texts.7
14                       If defendants are allowed to introduce evidence concerning the subsequent income of
15   DSL derived from John Doe’s management and hard work, the jury will be asked to reduce the
16   loss of support based on the surviving spouse’s earning capacity and financial management. In a
17   1963 case, the Court of Appeal specifically disavowed this tactic. There, the defense submitted
18   evidence and was allowed to argue “that the continued existence of the income-producing
19   business enterprise negatived the idea of material or monetary loss, and that the loss of her
20   husband did not impair [the surviving spouse]’s financial security.”8 The judgment was reversed
21   and a new trial was granted on the issue of damages because damages had been computed by
22   “charg[ing] plaintiffs and credit[ing] defendant with the sound, income-producing assets of the …
23

24                       5
              Harrison v. Sutter St. Ry. Co. (1897) 116 Cal. 156, 163; see also Overly v. Ingalls
25   Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 176.
                         6
                             McLaughlin v. United Railroads (1915) 169 Cal. 494, 496-498.
26
                         7
               See, e.g., 6 Witkin, Summary of California Law (2005 ed.), p. 1224 and cases cited
27   (pecuniary loss in a wrongful death case “is to be determined on the basis of conditions existing
     at the time of the decedent’s death.”
28                       8
                             Stathos v. Lemich (1963) 213 Cal App. 2nd 52, 55.

                                                                    -4-
                PLAINTIFFS’ MOTION IN LIMINE NO. 14: TO EXCLUDE FINANCIAL AND RELATED EVIDENCE
     {Copy of Limine 14. Financial Evidence.Wealth of Heirs.DOC}
 1   estate.”9
 2                       Similarly, the Court of Appeal has expressly approved a jury instruction to the effect that
 3   the fact that the surviving widow “has earned since the death of her husband..., or is capable of
 4   earning amounts large or small cannot and must not be considered by you in assessing the
 5   damages.” Exclusion of all post-death evidence is mandated by, and gives effect to, the governing
 6   “measure of damages in such cases,” that is, “what the heirs would have received had the
 7   decedent lived.”10
 8                       Based upon the foregoing well-established rules, plaintiffs ask the court to enter an order
 9   which will exclude any and all evidence with respect to John Doe’s operation of DSL after Jane’s
10   death, income from the business, or evidence of John Doe’s inherited wealth as a result of Jane
11   Doe’s death.
12   C. Tax implications of damages should be excluded
13                       Income tax consequences are of no relevance in personal injury litigation.11 Specifically,
14   the income tax consequences of a decedent’s projected future earnings are irrelevant and so
15   subject to “intense speculation” as to preclude admissibility.12
16

17                                                                 III. Conclusion
18                       John Doe’s earnings, either before or after the accident, any inheritance he received from
19   his wife, and the tax implications of any damage ward are not relevant to any issue in dispute.
20   Evidence of this information may tend to create unfair prejudice in the jury. Plaintiffs John Doe,
21   Adult Son A, Adult Son B, and Adult Daughter therefore respectfully request that the Court grant
22   this motion in limine and instruct defendants and defense counsel not to refer to, interrogate any
23   witness concerning, comment on, or attempt to suggest to the jury in any way information about
24

25                       9
                             Id. at p. 59.
26                       10
               Johnson v. Western Air Express Corporation (1941) 45 Cal App.2d 614, 622; see
     accord, Riley v. California Erectors, Inc. (1973) 36 Cal.App.3d 29, 33.
27
                         11
                                Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 664.
28                       12
                                Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512, 543.

                                                                          -5-
                PLAINTIFFS’ MOTION IN LIMINE NO. 14: TO EXCLUDE FINANCIAL AND RELATED EVIDENCE
     {Copy of Limine 14. Financial Evidence.Wealth of Heirs.DOC}
 1   (1) John Doe’s income from the family business information that he earned in the years before his
 2   wife’s death; (2) John Doe’s earning as the surviving spouse, and any inheritance from decedent
 3   Jane Doe’s estate; and (3) any tax implications of damages, and to instruct counsel to advise all
 4   witnesses:
 5                       1.                   Not to mention, refer to, or attempt to convey to the jury in any manner, either
 6   directly or indirectly, any of the facts mentioned in this motion; and,
 7                       2.                   Not to make any reference to the fact that this motion has been filed.
 8                                                                          Respectfully submitted,
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                PLAINTIFFS’ MOTION IN LIMINE NO. 14: TO EXCLUDE FINANCIAL AND RELATED EVIDENCE
     {Copy of Limine 14. Financial Evidence.Wealth of Heirs.DOC}
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     {Copy of Limine 14. Financial Evidence.Wealth of Heirs.DOC}

				
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