`
`1/14/2022
`
`DEBORAH S. TROPP, ESQ. – BAR NO. 162613
`TRACY L. BREUER, ESQ. – BAR NO. 238687
`MCNEIL, TROPP & BRAUN, LLP
`2 Park Plaza, Suite 620
`Irvine, California 92614
`(949) 259-2890; Fax: (949) 259-2891
`dtropp@mtbattorneys.com; tbreuer@mtbattorneys.com
`
`Attorneys for Defendant ACCESSIBLE HOME LIFT COMPANY
`
`
`
`
`
`SUPERIOR COURT OF CALIFORNIA
`
`COUNTY OF SAN MATEO
`
`
`
`
`CASE NO. 19CIV00067
`UNLIMITED CIVIL CASE
`
`ASSIGNED FOR ALL PURPOSES TO:
`JUDGE IRMA ASBERRY
`DEPARTMENT 05
`
`DEFENDANT’S MIL NO. 6 TO
`EXCLUDE EVIDENCE OF PLAINTIFF’S
`UNPAID MEDICAL BILLS
`
`MICHAEL VEIMAU and VANGANA
`VEIMAU,
`
`
`
`
`
`
`
`JOEL PHILLIPS; SALLY PHILLIPS; and
`DOES 1-50 Inclusive,
`
`
`
`
`
`AND ALL RELATED CROSS-ACTIONS
`
`
`Plaintiffs,
`
`
`vs.
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE that Defendant ACCESSIBLE HOME LIFT COMPANY
`respectfully moves this court before trial and selection of the jury for an order to prohibit Plaintiffs
`MICHAEL VEIMAU and VANGANA VAIMAU and their attorneys of record, from introducing,
`mentioning, referring to, or alluding to evidence of charges, costs, or amounts in Plaintiffs’
`medical bills at trial. This Motion is made on the basis that such reports are hearsay and lack
`foundation.
`The Motion is made based on Evidence Code Section 1200, California Evidence Code
`
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`Section 1271, relevant case law, the attached Memorandum of Points and Authorities, and upon
`such further oral and documentary evidence as may be presented at the hearing of this Motion.
`
`DATED: January 22, 2022
`
`
`
`
`
`
`
`McNEIL TROPP & BRAUN LLP
`
`
`
`
`
`
`
`By:
` DEBORAH S. TROPP
` TRACY L. BREUER
`Attorneys for Defendant ACCESSIBLE
`HOME LIFT COMPANY
`
`
`
`
`
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`MEMORANDUM OF POINTS AND AUTHORITIES
`I. INTRODUCTION
`This incident took place on August 25, 2017. Plaintiff VANGANA VEIMAU was a
`caretaker for the decedent Marjorie Phillips. She was injured when she backed into a lift shaft
`while pulling a wheelchair thinking the platform of the lift was at the top level. The lift was not at
`that level and Plaintiff ended up falling backwards in the shaft down one floor. As she fell, she
`pulled the wheelchair with Ms. Phillips down with her. Plaintiff VANGANA VEIMAU contends
`that she was injured and required medical treatment from numerous providers. Some of Plaintiff’s
`medical treatment was done on a lien basis and the bills for such treatment have not been paid.
`Thus, because the Plaintiff’s medical bills are hearsay and do not fall within the business records
`exception to the hearsay rule, this court should preclude Plaintiffs and their attorney of record
`from introducing, mentioning, referring to, or alluding to evidence of charges, costs, or amounts
`in Plaintiff’s medical bills at trial.
`II. MEDICAL BILLS ARE INADMISSIBLE UNDER THE HEARSAY RULE AND
`EXCLUDED AS EVIDENCE UNLESS PAID BY THE PARTY
`Under California Evidence Code Section 1200, hearsay evidence is “evidence of a
`
`statement that was made other than by a witness while testifying at the hearing and that is offered
`to prove the truth of the matter stated.” Evid. Code Section 1200(a). “Except as provided by law,
`hearsay evidence is inadmissible.” Evid. Code Section 1200(b).
`In People v. Maki the California Supreme Court provided: “Since invoices, bills, and
`receipts for repairs are hearsay, they are inadmissible independently to prove that liability for the
`repairs was incurred, that payment was made, or that the charges were reasonable.”(1985) 39
`Cal.3d 707, 711-712. In addition, the California Appellate Court in Imperial Cattle Co. v.
`Imperial Irrigation Dist. stated: “Such a rule may be supported by the observation that a party who
`receives a bill or invoice normally has every interest to dispute the accuracy or reasonableness if
`there is reason to do so. Thus, if a bill or invoice is paid, the court is assured of the accuracy and
`reasonableness of the charges.” (1985) 167 Cal.App.3d 263, 272.
`
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`At various facilities, it appears the services were done on a lien basis such that their
`payment is tied to Plaintiff’s recovery in this action and subject to negotiation pursuant to the
`meaning of Imperial Cattle Co., supra, 167 Cal.App.3d 263. The bills for treatment from these
`providers have not been paid and Plaintiff has testified that he has no idea what his medical
`billing was from the accident. Thus, the court cannot be assured of the reasonableness and
`accuracy of the charges. Accordingly, there is no support for reasonableness and necessity of
`Plaintiff’s aforementioned bills and they must be excluded from evidence as inadmissible hearsay.
`III. PLAINTIFF’S MEDICAL BILLS DO NOT FALL UNDER THE BUSINESS
`RECORDS EXCEPTION TO THE HEARSAY RULE AND SHOULD
`THEREFORE BE EXCLUDED
`The business records exception to the hearsay rule is defined in California Evidence Code
`Section 1271, which provides the following:
`Evidence of a writing made as a record of an act, condition, or event
`is not made inadmissible by the hearsay rule when offered to prove
`the act, condition, or event if:
`(a)
`The writing was made in the regular course of
`a business;
`(b)
`The writing was made at or near the time of
`the act, condition, or event;
`(c)
`The custodian or other qualified witness
`testifies
`to
`its
`identity and
`the mode of
`its
`preparation; and
`(d)
`The sources of information and method and time of
`preparation were such as to indicate its trustworthiness.
`Many of the Plaintiff’s medical bills were not generated at any time near their dates of
`treatment. As such, this court should exclude them from introduction at trial, as they fail to fall
`within the business records exception to the hearsay rule.
`///
`
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`

`

`IV. CONCLUSION
`For the foregoing reasons, Defendant respectfully requests that the court preclude
`Plaintiffs from introducing, mentioning, referring to, or alluding to medical bills, invoices or
`receipts incurred from Plaintiffs’ medical providers which were not paid.
`
`DATED: January 14, 2022
`
`
`
`
`
`McNEIL TROPP & BRAUN LLP
`
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`By:
`DEBORAH S. TROPP
` TRACY L. BREUER
`Attorneys for Defendant ACCESSIBLE
`HOME LIFT COMPANY
`
`
`
`
`
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`PROOF OF SERVICE
`C.C.P. §1013a, C.R.C. 2003(3), 2005(i)
`
`
`)
`STATE OF CALIFORNIA
`
`) ss.
`
`
`
`
`
`)
`COUNTY OF ORANGE
`
`
`I am employed in the aforesaid County, State of California. I am over the age of 18 years
`and not a party to the within action; my business address is 2 Park Plaza, Suite 620, Irvine,
`California 92614.
`
`On January 14, 2022, I served the foregoing document described as DEFENDANT
`
`ACCESSIBLE HOME LIFT COMPANY’S MOTION IN LIMINE NO. 6 on the interested
`parties in this action by:
`
`
`
`
`Placing __ the original _X_ a true copy thereof, enclosed in sealed envelopes,
`addressed as follows on the attached SERVICE LIST.
`
`BY MAIL: I am "readily familiar" with the firm's practice of collection and
`processing correspondence for mailing. Under that practice, it would
`be deposited with the United States Postal Service on that same day,
`with postage thereon fully prepaid at Irvine, California in the
`ordinary course of business. I am aware that on motion of the party
`served, service is presumed invalid if postal cancellation date or
`postage meter date is more than one day after date of deposit for
`mailing an affidavit.
`
` BY FACSIMILE TRANSMISSION: From FAX No. (949) 259-2891 to FAX No.
`____________ and directed to a representative on the attached
`Service List. The facsimile machine I used complied with Rule
`2003(3), and no error was reported by the machine. Pursuant to Rule
`2005(i), I caused the machine to print a record of the transmission, a
`copy of which is attached to this declaration.
`
` BY PERSONAL SERVICE: I caused such envelope to be delivered by hand to the
` offices of the addressee.
`
`x BY ELECTRONIC MAIL: I caused a copy of the aforementioned document to
`be delivered by electronic mail to the representatives on the
`attached Service List.
`
` BY FEDERAL EXPRESS: I caused a copy of the aforementioned document to
`be delivered by overnight mail via Federal Express to the
`representatives on the attached Service List.
`
`I declare under penalty of perjury under the laws of the State of
`California that the above is true and correct.
`
` 1
`
` X
`
`
`
`
`
`STATE:
`
`Executed on January 14, 2022, at Irvine, California.
`
`
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`
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`Jena M. Rivera
`
`
`
`
`
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`
`
`
`VEIMAU v. PHILLIPS
`OUR FILE NO.: 180-03
`
`Eric R. Bell, Esq.
`Bell Firm, PC
`34 Hermosa Avenue
`Hermosa Beach, California 90254
`
`Robert T. Simon, Esq.
`Brandon J. Simon, Esq.
`The Simon Law Group, LLP
`1327 North Broadway
`Santa Ana, California 92706
`
`Guy D. Borges, Esq.
`Yelena Yakubova, Esq.
`McNamara, Ney, Beatty, Slattery, Borges
`&
`Ambacher, LLP
`639 Kentucky Street, 1st Floor
`Fairfield, California 94533
`
`Sophia Achermann, Esq.
`Fiore Achermann
`340 Pine Street, Suite 503
`San Francisco, California 94104
`
`Jon B. Zimmerman, Esq.
`Gregory B. Cohen, Esq.
`Messner Reeves, LLP
`160 West Santa Clara Street, Suite 1000
`San Jose, California 95113
`
`
`
`SERVICE LIST
`
`Attorneys for Plaintiffs MICHAEL VEIMAU and
`VANGANA VEIMAU
`(310) 914-5400
`Fax: (310) 914-5401
`ebell@justiceteam.com
`
`Co-Counsel for Plaintiffs
`(855) 855-8910
`Fax: (855) 855-8910
`robert@justiceteam.com
`gerry@justiceteam.com
`
`Attorneys for Defendants/Cross-Complainants
`JOEL PHILLIPS and SALLY PHILLIPS
`(707) 427-3998
`Fax: (707) 427-0268
`Peter.Hirsig@McNamaraLaw.com
`Yelena.Yakubova@McNamaraLaw.com
`Guy.Borges@McNamaralaw.com
`Jenine.Fortney@McNamaraLaw.com
`Cristy.Houchins@McNamaraLaw.com
`Heather.Permison@McNamaraLaw.com
`Sandra.Marrujo@McNamaraLaw.com
`
`Attorneys for Cross-Defendants SIVA LATU and
`SIVA’S HOME CARE
`(415) 550-0650
`Fax: (415) 550-0650
`sophia@thefafirm.com
`
`Attorneys for Defendant HOME SAFETY
`SERVICES, INC.
`(408) 298-7120
`Fax: (408) 298-0477
`jzimmerman@messner.com
`gcohen@messner.com
`jtimbol@messner.com
`JPardodeZela@messner.com
`
`
`
`
`
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