1 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF SANTA CRUZ 3 BEFORE THE HONORABLE ROBERT B. ATACK 4 5 RICHARD QUIGLEY, et al., ) 6 Plaintiffs, ) ) 7 vs. ) Case No. CV155682 ) 8 CALIFORNIA HIGHWAY PATROL, ) et al., ) 9 Defendants. ) 10 11 12 REPORTER'S TRANSCRIPT OF PROCEEDINGS 13 SANTA CRUZ, CALIFORNIA 14 MAY 19, 2008 15 DEPARTMENT 5 16 17 APPEARANCES: 18 For the Plaintiffs: WENDY LASCHER 19 Attorney at Law 20 21 For the Defendants: LILLIAN TABE Attorney at Law 22 KAREN HUSTER 23 Attorney at Law 24 25 Official Court Reporter DENISE S. GALLAGHER, RPR, CSR #9444 26 2 1 I N D E X 2 DATE: May 19, 2008 3 DIR CRS REDIR RECRS 4 Witness for the Plaintiffs: 5 STEVE BIANCO 6 By: Ms. Lascher 30 7 Ms. Tabe 33 8 DONALD BLANSCET 9 By: Ms. Lascher 35 10 Ms. Huster 52 11 JOSEPH W. CLIFF 12 By: Ms. Lascher 55 13 Ms. Huster 14 15 16 17 E X H I B I T S 18 For In 19 People's No. Description I.D. Evid. 20 1 7/2/06 citation 58 60 21 2 2/9/07 letter 66 22 23 24 25 26 3 1 May 19, 2008 Santa Cruz, California 2 P R O C E E D I N G S 3 THE COURT: In the matter that we have set 4 for court trial today, Quigley, et al., versus 5 California Highway Patrol, et al., case number 6 CV155682, could we have appearances, please. 7 MS. LASCHER: Wendy Lascher for the 8 plaintiffs, Your Honor. Good morning. 9 THE COURT: Good morning. 10 MS. TABE: Lillian Tabe of the Department 11 of Justice, Your Honor, on behalf of the defendants. 12 MS. HUSTER: Good morning, Your Honor. 13 Karen Kiyo Huster on behalf of defendants. 14 THE COURT: Okay. In this matter we have 15 motions in limine to go over. I have received the 16 various responses and was able finally to pin down how 17 to get the last one off the computer, believe it or 18 not. I had to figure out what application I could 19 use. 20 MS. LASCHER: Your Honor, I have a further 21 written response, which I apologize for it being so 22 late. Yesterday the "H" key on my computer broke and 23 I could not type any words that had an "H" in them. 24 It was midnight last night when I got someone to come 25 over with a can of air and help me fix it. So I 26 revised those this morning. They're out being copied 4 1 right now and I expect to serve them -- 2 THE COURT: Are they the same that I have 3 already received? 4 MS. LASCHER: There are just slight 5 elaborations, including the deposition testimony that 6 backs them up and a declaration -- 7 THE COURT: When am I going to get them? 8 MS. LASCHER: When the guy copying them 9 returns, which I assume will be in the next ten 10 minutes. But I can argue them without -- 11 THE COURT: I'm going to go over them at 12 this time. This could go on forever and that's why I 13 requested that I get them this weekend so that we'd be 14 ready to go here this morning, and I even set this 15 later than normal at 10:00 o'clock so that we would 16 not have too much pressure to get started here. 17 MS. LASCHER: Your Honor, may I put 18 something on the record concerning that? I appreciate 19 Your Honor accommodating us in that way, but I had 20 no -- you know, I had ten minutes of notice of the 21 motions and I did not have the technical capability 22 over the weekend, because I'm out of town, until late 23 yesterday to prepare opposition other than what I 24 e-mailed. So I appreciate the accommodation of 25 getting something in by Saturday, but it simply wasn't 26 enough notice for me to complete that. 5 1 THE COURT: Well, I'm afraid that's the 2 way things work out these days. People are last 3 minute on everything and it puts me behind the 8-ball, 4 and I don't like it any more than you probably do. 5 But if you don't get me your motions when I request 6 them on Friday afternoon, it puts me at a 7 disadvantage. I'm going to probably start asking that 8 these motions be provided to each party five days 9 beforehand so that you can have responses in the 10 future. 11 In any event, there are a number of 12 motions in limine brought by the defendants. Motion 13 in limine number 1 deals with the excluding of 14 citations issued prior to the implementation of the 15 current helmet enforcement policy. The current helmet 16 enforcement policy at least as alleged was enacted in 17 2005 and is in existence, as I understand it, at this 18 time. Is there further discussion regarding this 19 motion in limine brought by the defense? 20 MS. LASCHER: Yes, Your Honor. The 21 defendant is the moving party. Maybe they have 22 something further to say. 23 THE COURT: I'm sorry? 24 MS. LASCHER: I'm sorry. It's the 25 defendant's motion. I'll let them speak to it first. 26 THE COURT: They've already spoken. Would 6 1 you have any opposition? 2 MS. LASCHER: Yes, Your Honor. And I will 3 submit this. Number one, the notice of Sergeant 4 Valdez's deposition, the original notice was for the 5 CHP to designate its person most qualified to testify 6 as to its interpretation of, enforcement of and 7 training about California's helmet law, i.e., Vehicle 8 Code Section 27802 and 27803, from 1992 to present. 9 The deposition was twice postponed at the defense's 10 request. Our subsequent notices left off the phrase 11 "1992 to present," but by then Sergeant Valdez had 12 already been identified as the person most 13 knowledgeable concerning policies from 1992 to 14 present. 15 THE COURT: Aren't we concerned with the 16 policies as they are and have been since 2005? 17 MS. LASCHER: I have two comments. Yes, 18 Your Honor, but Sergeant Valdez testified -- counsel 19 continuously objected during the deposition that he 20 was not noticed to testify as to policies before 2005. 21 And, in fact, he was, as I just explained. 22 Secondly, he testified there had been no 23 substantive changes. He had been a Highway Patrol 24 officer for 28 years. He was trained about helmet 25 policy. When he took over in September 2005 he 26 stated: 7 1 "When the law was first enacted policy 2 was drafted and that was before my time in 3 research and planning sections, so I have 4 no history on who wrote it or how it was 5 implemented. 6 "Question: When you came into this 7 position in 2005 -- is that correct? 8 "Answer: Yes. 9 "Question: When you came into this 10 position in 2005, were you handed a book 11 of policies, a set of policies on the 12 computer or something of that sort? 13 "Answer: I have books of policy and I 14 have policy on the computer. 15 "Question: How did you acquire those 16 policies? 17 "Answer: I got them from the previous 18 sergeant who was in charge of the unit. 19 "Question: Since you got those 20 policies, have you made any changes to the 21 policies? 22 "Answer: The only policy change was 23 in April of -- of '06, and it just removed 24 the helmet law from one chapter and put it 25 into its own chapter. 26 "Question: There were no changes to 8 1 the text at that time? 2 "Answer: No." 3 So Sergeant Valdez did not know what the 4 policy was before 2005. There's no evidence that it's 5 the same -- that there were any changes as of 2005, 6 and the only change since then was to move it in the 7 book. 8 Further, I would make an offer of proof, 9 and my declaration when it gets here in a minute will 10 support this. As a result of receiving the motion in 11 limine Friday afternoon, I contacted some other people 12 and I'm going to offer to prove that Michael Osborn 13 will testify that on September 18, 1996, former CHP 14 Commissioner D.O. Helmick sent him a fax stating that 15 the CHP policy as a result of the then recent court 16 decision, meaning Easyriders, would be the policy now 17 reflected in Chapter 4 of the policy manual 100.68 18 which Sergeant Valdez testified is the CHP current 19 policy. In other words, my argument is the policy 20 changed in 1996, not in 2005, and that anything that 21 happened -- and that's our offer of proof -- from 1996 22 to the present is relevant. 23 THE COURT: Response. 24 MS. HUSTER: Yes, Your Honor. As a 25 preliminary matter regarding the person most 26 knowledgeable's deposition, defendants objected to the 9 1 scope of time of the subject matter of persons most 2 knowledgeable. That is to say, defendants 3 specifically limited the person most knowledgeable 4 production to the current policy. That's what 5 Sergeant Valdez testified to. And I'll note that 6 plaintiffs did not say that Sergeant Valdez testified 7 that the policy has not changed. The fact of the 8 matter is the policy did change in 2005. Prior to 9 2005 it was different, as the Court is aware. But in 10 2006, as Sergeant Valdez testified, there was a 11 non-substantive change but that the current policy has 12 been in place since 2005 and not before. 13 What the plaintiffs just stated was that 14 Sergeant Valdez came to his deposition -- and he said 15 he arrived in 2005, that was the year the new policy 16 was in place -- and that he was unaware of the 17 procedures by which prior policies were drafted. The 18 evidence is going to show that it's a different policy 19 now from the policies that were in place when the 20 various witnesses will testify that they were cited. 21 So for that reason there's no relevance whatsoever to 22 any evidence of policies prior to 2005. 23 To the extent that plaintiff intends to 24 provide evidence of a fax which we have not been 25 provided in discovery that allegedly came from the 26 CHP, well, the best evidence of what the policy was 10 1 prior to 2005 is the text of the policy, and we're 2 prepared to offer that right now. However, we would 3 submit that the policy has been the same since 2005. 4 Prior to 2005 it was different, and so therefore since 5 the plaintiffs are seeking purely prospective relief, 6 anything prior to 2005 is irrelevant. 7 THE COURT: All right. The motion is 8 granted. 9 MS. HUSTER: Thank you, Your Honor. 10 THE COURT: As to motion in limine number 11 2 to exclude evidence of citations issued by non-party 12 law enforcement agencies, the tentative is to grant 13 that as well. 14 MS. TABE: Thank you. 15 MS. HUSTER: Thank you, Your Honor. 16 THE COURT: Further argument. 17 MS. LASCHER: Yes, Your Honor. I am 18 prepared to offer to the Court CHP's bulletin number 19 59, which was presented in discovery, and number 71, 20 which I'm not sure was presented in discovery but I 21 will ask for leave to present it. They are CHP 22 bulletins to allied agencies. 23 THE COURT: What are the dates of those? 24 MS. LASCHER: They are post-1995. And 25 they are bulletins stating what essentially is current 26 policy. 11 1 THE COURT: What is the date of those? 2 MS. LASCHER: They do not have dates. 3 They do not show dates, Your Honor, but they reflect 4 the changes in the law as of Easyriders, so they have 5 to be post-1995. In fact, number 59 reflects the 6 Easyriders initial injunction, and number 71 reflects 7 what happened after the Ninth Circuit heard 8 Easyriders, so change in the policy after the 9 Easyriders decision. Because in discovery the CHP 10 objected to requests concerning allied police 11 agencies, said the term was vague and refused to 12 provide any documents in response to our request for 13 admissions, which I will establish during the trial I 14 do not have those documents for the CHP. I obtained 15 them independently. I expect to ask Sergeant Valdez 16 about them. He denied there were such bulletins to 17 allied agencies. The CHP admitted previous bulletins 18 to allied agencies, so I think that's circumstantial 19 evidence that they also issued these bulletins 20 consistent with their own policy. 21 And because the CHP also -- I would like 22 to point out to the Court or request that the Court 23 take notice of the fact that Vehicle Code Section 2400 24 gives the CHP commissioner -- subsection (b) of 25 Section 2400 gives the CHP commissioner the duty to 26 enforce all of the laws concerning the operation of 12 1 motor vehicles on the highways. Vehicle Code Section 2 360 defines highways to include city streets. 3 Therefore, I submit that as part of its obligation to 4 enforce the laws, the CHP has the duty to enforce the 5 laws by explaining the laws to local police agencies 6 and therefore their policies concerning the helmet law 7 are relevant. 8 And finally, because we're asking the 9 Court to declare that the CHP's policy as expressed in 10 its policy manual for enforcing the law is, one, in 11 violation of the Easyriders injunction, and, two -- or 12 at least the CHP is not complying with the injunction, 13 and, two, the policy as articulated by the CHP and 14 also enforced by local agencies is impossible to give 15 in terms of due process notice, that it is extremely 16 relevant how other police agencies interpret the same 17 law that the CHP interprets. 18 It would be a very strange state of the 19 law if police departments other than the CHP had one 20 method of interpreting a Vehicle Code provision such 21 as 27803 and the CHP had another, and therefore for 22 the Court to understand the issues concerning the lack 23 of notice afforded by this law and the wide variety of 24 interpretations about the law circulating throughout 25 the state, I think this Court needs to know how all 26 kinds of police agencies enforce the law. 13 1 Pardon me. 2 THE COURT: Do you want to take that call? 3 MS. LASCHER: No. I didn't know it was 4 on. I'm sorry. 5 THE COURT: Please turn off all cell 6 phones. Anything further? 7 MS. LASCHER: No, Your Honor. 8 MS. HUSTER: Your Honor, I want to 9 reiterate this is a case challenging the 10 constitutionality of the helmet law. It's not a case 11 about -- 12 THE COURT: Just a minute. Court adopts 13 the tentative ruling -- 14 MS. HUSTER: Thank you. 15 THE COURT: -- and grants defendant's 16 motion in limine number 2. 17 Motion in limine number 3, it was 18 indicated on Friday that that was going to be 19 withdrawn because plaintiff's counsel represented that 20 there will be no other officers called, traffic 21 officers in that regard. Is that accurate? 22 MS. LASCHER: That's accurate, Your Honor. 23 THE COURT: Okay. Motion in limine 24 number 4, to exclude evidence of citations received by 25 Plaintiff Quigley which have already been adjudicated 26 to be constitutional in a prior published case. That 14 1 case was California Highway Patrol versus Superior 2 Court at 158 Cal.App.4th 726. And the Court's 3 tentative ruling is to grant that. Anything further 4 in that regard? 5 MS. LASCHER: No, Your Honor. 6 THE COURT: Motion in limine number 5 is 7 to exclude evidence derived from Plaintiff Quigley's 8 deposition. The Court's tentative ruling is to deny 9 that motion. Further arguments by the defense? 10 MS. HUSTER: Submitted, Your Honor. 11 THE COURT: Motion in limine number 6, to 12 exclude evidence of patently non-protective headgear, 13 Evidence Code -- strike that. Motion in limine number 14 6 is to exclude evidence of patently non-protective 15 headgear. The Court's tentative ruling as to grant 16 that. Any further argument? 17 MS. LASCHER: No, Your Honor. 18 THE COURT: Motion in limine number 7, 19 exclusion of secondary evidence pursuant to 1521 and 20 1523 of the Evidence Code. The Court's tentative 21 ruling is to deny this particular motion. Further 22 argument? 23 MS. HUSTER: Yes, Your Honor. First of 24 all, I would like to point out that Evidence Code 25 Section 1523 provides a somewhat different 26 interpretation of secondary evidence. As the Court is 15 1 aware, 1521 says that generally the content of a 2 writing may be proved by secondary evidence and then 3 it sets forth exceptions. But I would argue that the 4 more applicable statute is Section 1523. That's the 5 section that was originally cited in the original 6 motion in limine on this matter, and that's a code 7 section that is much more restrictive. It 8 specifically says that oral testimony to prove the 9 content of a writing is not admissible. So there's an 10 initial presumption unlike 1521 that it's not 11 admissible, and in order for the evidence to be 12 admissible, certain other factors need to be 13 established, and that would be the burden of the party 14 who was presenting the evidence. 15 And in this case what we're talking about 16 are witnesses who want to come up and challenge the 17 entire -- the constitutionality of the helmet law, 18 that want to enjoin the enforcement statewide, and 19 there's no citation to go by. So it would be very 20 unfair to place the defendants in a position of having 21 to cross-examine on these citations when they simply 22 aren't -- there isn't any data provided to 23 cross-examine on. It would be, I think, untrue to say 24 that the plaintiffs intend merely to describe the 25 facts of the ticket. I think inevitably they will go 26 into the character and nature of the citations 16 1 themselves. 2 And just in reviewing some of the 3 deposition transcripts, time and again the witnesses 4 describe an unfriendly demeanor of the officer, 5 disrespectful behavior of the officer. There's just 6 all kinds of substantive characterizations of the 7 events. It is oral testimony used to prove the 8 content of the writing and it's prohibitive under 9 Section 1523. It's very prejudicial. The 10 introduction of it would be unfair. With that I 11 submit. 12 THE COURT: What is the exception to the 13 hearsay rule for the plaintiffs? 14 MS. LASCHER: We're not arguing hearsay. 15 If I asked the witness on the stand, "Were you stopped 16 by a highway patrol officer?" Answer: "Yes," that's 17 not hearsay. "Did the highway patrol officer" -- 18 THE COURT: That's not what I'm talking 19 about. I'm talking about the contents of the writing. 20 MS. LASCHER: I don't -- I think we have a 21 terminology issue with counsel. For one thing, we 22 have the citation -- 23 THE COURT: Are you going to be offering 24 the contents of the writing found on this citation 25 that has not been able to be produced into evidence? 26 MS. LASCHER: If -- A, in some cases yes, 17 1 what the officer wrote on the citation. But secondly, 2 apart from that, we will be offering testimony that is 3 not hearsay. "What did you hear the officer say? The 4 officer said I am citing you for not having an 5 approved helmet." Whether the officer wrote that on 6 the citation or not, his testimony to the witness is 7 not hearsay. 8 THE COURT: Then you're not offering the 9 contents of the writing? 10 MS. LASCHER: In those cases I -- 11 THE COURT: How, if at all, are you 12 offering the contents of the writing? 13 MS. LASCHER: I don't know that we are 14 except when we have the actual writing. This was 15 counsel's motion, not my motion. 16 THE COURT: So it may not even be 17 addressed by the plaintiffs to offer any contents on 18 the writing, in this case the citation. 19 MS. LASCHER: It -- may I offer one 20 observation, Your Honor? With respect to Mr. 21 Blanscet, we provided the citation numbers to the CHP. 22 The CHP's witness -- the CHP discovery stated we don't 23 retain copies of citations. Now the CHP is saying we 24 don't retain copies of citations even though we're the 25 law enforcement agency -- longer than six months -- 26 we're the law enforcement agency that cited you, but 18 1 it would be unfair to us for you to testify about a 2 citation that you likewise -- 3 THE COURT: I know what they said. My 4 question is why and if you are going to offer the 5 contents of the writing on these citations, how are 6 you going to do that and what is it you are going to 7 offer? That's my question. 8 MS. LASCHER: I'm going to offer the 9 contents of the writings. The exception to the 10 hearsay rule would be its admission or statement 11 against interest by the CHP because -- 12 THE COURT: And do you have copies of this 13 at all? 14 MS. LASCHER: The citation? In some 15 instances I do, yes. 16 THE COURT: Okay. 17 MS. LASCHER: I have copies. I don't have 18 originals. 19 THE COURT: Well, they're duplicate 20 originals, are they not? 21 MS. LASCHER: Duplicate originals, yes, 22 Your Honor. 23 THE COURT: So they are considered 24 originals. 25 MS. LASCHER: And with respect to 26 counsel's other arguments about characterization of 19 1 behavior and so forth, I don't intend to do that, but 2 I would assume the Court would take those matters up 3 on a question-by-question basis if that issue arises. 4 THE COURT: I adopt my tentative ruling to 5 deny -- 6 MS. HUSTER: Your Honor, may I -- 7 THE COURT: -- the defendant's motion in 8 limine number 7. 9 MS. HUSTER: Your Honor, may I be heard? 10 THE COURT: Yes, ma'am. 11 MS. HUSTER: May I be heard? 12 THE COURT: Yes. 13 MS. HUSTER: All right. Thank you. 14 THE COURT: Just don't interrupt me when 15 I'm talking. That's all I'm asking. 16 MS. HUSTER: I apologize, Your Honor. I 17 thought you said the Court is adopting, and I was 18 hoping for a chance to be heard before the Court's 19 final ruling on motion in limine number 7. 20 THE COURT: Go ahead. 21 MS. HUSTER: First of all, counsel just 22 testified that she intends to offer evidence of the 23 contents of the citation, so that's not in dispute. 24 Evidence Code Section 1523 states except as otherwise 25 provided by statute, oral testimony is not admissible 26 to prove the contents of a writing. There is an 20 1 exception (c): Oral testimony of the content of a 2 writing is not made inadmissible if the proponent does 3 not have control of the original or a copy of the 4 writing and either of the following conditions are 5 satisfied. Neither of those two conditions are 6 satisfied. 7 And we're not aware -- we could be 8 incorrect, but we certainly haven't been provided any 9 discovery of any citations that have been issued to 10 witnesses that plaintiffs intend to call today; that 11 is to say, Blanscet and Bianco, the witnesses that we 12 will not be arguing against. 13 THE COURT: I don't know, and I haven't 14 been able to figure that out but it sounds like they 15 have some of these citations. That's just what she 16 said. And the question is if they have them and 17 haven't been provided, then of course they would go -- 18 certainly it could be that that party could be 19 impeached by way of answers to interrogatories or 20 responses to questions in depositions. But it seems 21 to me that there is an exception to the hearsay rule 22 as admissions by the officers as parties indirectly 23 here to the CHP, and my tentative would be adopted at 24 this time. 25 Now, if for some reason we get information 26 that suddenly turns everything on its head here, then 21 1 I will reconsider this. But the best I can 2 understand, and it's not real clear to me what the 3 plaintiff intends to offer in this regard or how it 4 intends to bring this in, but my tentative is going to 5 be adopted at this time subject to further review 6 because I'm not quite sure I understand if they have 7 these citations or not. I have been told that they 8 do. You apparently haven't seen them. Why I don't 9 know. So on that basis it leaves the door open 10 slightly for further review of this as to why this has 11 not been provided in discovery or discussed in 12 discovery earlier if it has not been. 13 Motion in limine number 8 is to exclude 14 evidence that plaintiff failed to disclose at pretrial 15 or during the various discovery or pleadings. And 16 apparently it involves three additional witnesses that 17 were discovered last week. And although there were 18 depositions going on, I understand, of other witnesses 19 and parties, this was never discussed until Friday 20 afternoon that there were these three additional 21 witnesses. Who are these people? 22 MS. LASCHER: Mr. Dwonch, Mr. McBride and 23 Mr. Ramos, although I think now we will withdraw Mr. 24 Ramos because I don't think he's able to -- 25 THE COURT: So there are two? 26 MS. LASCHER: There are two. 22 1 THE COURT: And why wasn't this disclosed 2 before Friday? 3 MS. LASCHER: I did not know about them. 4 My clients did not know about them. My clients were 5 out looking for other people who had tickets from the 6 Highway Patrol after 2005 as a result of hearing the 7 objections made at the deposition of Sergeant Valdez. 8 THE COURT: When were they finally 9 presented to you? 10 MS. LASCHER: Thursday afternoon, Your 11 Honor. 12 THE COURT: Okay. The Court's tentative 13 ruling is to grant the defendant's motion as it 14 relates to motion in limine number 8. 15 MS. LASCHER: Your Honor, may I inquire, 16 also does that ruling apply to rebuttal testimony as 17 well as to direct testimony on the case in chief? 18 THE COURT: I don't know. Rebuttal 19 testimony is not favored in most circumstances, and if 20 it's just another way to get it in in your case in 21 chief, it would not be rebuttal testimony. It 22 probably would be excluded. I don't know. 23 MS. LASCHER: May I -- 24 THE COURT: I would have to listen to the 25 evidence first before I even know if it's rebuttal 26 testimony, number one. But if it's just another way 23 1 of getting this information in front of the Court that 2 would be improper had it been in your case in chief, 3 then the answer is no, it would not be allowed. So I 4 can't answer that question. 5 MS. LASCHER: Thank you. 6 THE COURT: All right. Motion in limine 7 number 9, to exclude witnesses from the courtroom who 8 are not under examination and who are not parties to 9 the action. That would be granted. Are there any 10 further discussions on that? 11 MS. HUSTER: No, Your Honor. 12 THE COURT: Motion in limine number 10, to 13 exclude reference to the size, resources or financial 14 condition of the California Highway Patrol or its 15 counsel, the Attorney General. That would be granted. 16 Are there further discussions on the 17 motions in limine? 18 MS. HUSTER: None from defendants, Your 19 Honor. 20 THE COURT: Anything further? 21 MS. LASCHER: Not from plaintiffs, Your 22 Honor. 23 THE COURT: Are there any further motions 24 in limine that the Court should take up at this time? 25 MS. LASCHER: The plaintiffs will move in 26 limine that the defendants not offer any evidence not 24 1 disclosed in discovery. But I assume that that was 2 likewise -- that was a reciprocal ruling when the 3 Court made that ruling. 4 THE COURT: Yes. Anything further? 5 MS. LASCHER: No, Your Honor. 6 THE COURT: All right. And -- 7 THE BAILIFF: Do the witnesses need to 8 leave? Witnesses are to be excluded? 9 THE COURT: They're fine right now. We're 10 just going through the in limine motions. I have not 11 had identified to me the various witnesses or 12 representatives that would be testifying. Would the 13 plaintiff state who is here and who is likely to be 14 here during the course of the trial. 15 MS. LASCHER: The plaintiffs Don Blanscet 16 and Steve Bianco are here and will be here through the 17 course of the trial. 18 THE COURT: Could you point them out? 19 MS. LASCHER: Mr. Blanscet in the plaid 20 shirt standing up and Mr. Bianco in the second row. I 21 don't know because they're new -- Mr. Temple is not 22 here yet. He's out in the hallway. And I don't know 23 Mr. Cliff or Mr. McBride, so I can't tell you if these 24 gentlemen are -- they're out in the hallway also. 25 THE COURT: Okay. Who else is here? Just 26 observers? 25 1 MS. LASCHER: I assume. I don't know 2 these gentlemen. 3 THE COURT: Well, that's why I want to 4 make sure that you have inquired about them since they 5 seem to be related to your plaintiffs, so -- 6 MS. LASCHER: May I have one -- 7 THE COURT: -- if they have some interest 8 in that regard -- 9 MS. LASCHER: May I have sixty seconds to 10 inquire, Your Honor? 11 THE COURT: Sure. 12 (A brief interruption.) 13 THE COURT: All right. So I've met the 14 two plaintiffs that are present, and there are other 15 people that are present that have interest in this 16 lawsuit who are not parties or witnesses and they are 17 fine to be here. 18 And as far as the defense, are there going 19 to be any representatives that -- or Mike Brown or 20 Christina Manriquez, anybody that you want to point 21 out to the Court at this time? 22 MS. HUSTER: Not at this time, Your Honor. 23 THE COURT: Are there going to be any of 24 those individuals present during the course of this 25 trial, if you're aware? 26 MS. HUSTER: Yes, Your Honor, they will 26 1 be. 2 THE COURT: Okay. Well, if you'll just 3 keep us advised and opposing counsel advised of that, 4 I would appreciate it -- 5 MS. HUSTER: Certainly. 6 THE COURT: -- so that we know that motion 7 to exclude is being complied with. 8 Now, is there anything we need to take up 9 before we call the first witness? 10 MS. HUSTER: Nothing for defendants, Your 11 Honor. 12 MS. LASCHER: May I make a brief opening 13 statement, Your Honor? 14 THE COURT: Yes. 15 MS. LASCHER: The existing case law 16 provides that the average person cannot be expected to 17 know if a helmet complies with the Federal motor 18 vehicle safety standard 218. That's the Buhl case. 19 Also CHP versus Superior Court. And I will be 20 referring to the standard as standard 218 just for 21 shorthand. Existing law provides that a motorcyclist 22 may rely on a manufacturer's certification of 23 compliance until they have actual knowledge that a 24 helmet does not comply with the law either by reason 25 of the fact that it has been recalled or it doesn't 26 have a manufacturer's certification -- that would be 27 1 the Bianco case -- or if the person is bare headed or 2 wearing something soft on their head -- that would be 3 CHP versus Superior Court. And finally, existing law 4 provides that an officer may not cite a motorcyclist 5 for violating the helmet law -- 6 THE COURT: Excuse me. I thought you said 7 you had an opening statement. 8 MS. LASCHER: I have to state -- I do and 9 it's argument -- I have to state what the law is to 10 argue that the -- 11 THE COURT: No. 12 MS. LASCHER: All right. 13 THE COURT: An opening statement is to 14 state what you intend this Court to view through the 15 evidence. It is not argument and it is not law. 16 MS. LASCHER: I will -- Your Honor, in 17 this case because it's a declaratory judgment case we 18 will prove that the CHP's current policy is that 19 officers shall not attempt to make a determination of 20 noncompliance before or during an enforcement stop, 21 and that when they do stop people for other violations 22 they will focus on motorcycle helmets that are, quote, 23 obviously not motorcycle -- focus on helmets that are, 24 quote, obviously not motorcycle helmets. We will 25 establish that the CHP does not comply with its own 26 policy or with case law, which is the reason I was 28 1 citing case law, because that's what we'll show the 2 CHP doesn't comply with. Instead, CHP officers are 3 issuing citations for failing to wear approved 4 helmets. We will also establish there is no such 5 thing as an approved helmet. Further, we will 6 establish that the CHP policy doesn't define the 7 conduct it prohibits with enough definiteness to give 8 notice to either officers or motorcyclists about what 9 the law is, and we will have testimony to establish 10 that. 11 THE COURT: Are there any stipulations 12 before we call the first witness? Is it understood 13 that the Court is looking at the constitutionality as 14 applied rather than a facial attack on the statute? 15 MS. LASCHER: Yes. 16 THE COURT: Do you agree to that? 17 MS. LASCHER: I agree to that, Your Honor. 18 MS. HUSTER: Your Honor, we can't agree to 19 that. 20 THE COURT: What are you indicating? 21 MS. TABE: Your Honor, we cannot agree to 22 that because based on the allegations contained in the 23 Complaint, it's not clear that plaintiffs are bringing 24 an as-applied challenge. From the face of the 25 Complaint it appears that they are bringing a facial 26 challenge. 29 1 THE COURT: Okay. Anything else? All 2 right. Call your first witness, please. 3 MS. LASCHER: Thank you, Your Honor. May 4 I inquire in light of the Court's in limine ruling, do 5 I -- am I required to make a further offer of proof 6 concerning citations issued by non-CHP police 7 agencies? 8 THE COURT: I've already ruled on that. 9 MS. LASCHER: Until the defense puts on 10 its evidence that the policy changed in 2005, am I 11 precluded from offering evidence concerning CHP 12 citations before 2005? 13 THE COURT: Yes. 14 MS. LASCHER: Thank you. Plaintiffs will 15 call Steve Bianco. 16 STEVE BIANCO 17 called as a witness on behalf of 18 the Plaintiff, having been first duly sworn, was 19 examined and testified as follows: 20 THE COURT: Please have a seat up here, 21 sir. And when you get comfortable in a somewhat 22 uncomfortable chair there, sir, would you state your 23 full name and spell your last name. 24 THE WITNESS: Yes, sir. My name is Steve 25 Bianco, B-i-a-n-c-o. 26 THE COURT: Okay. Your witness. 30 1 MS. LASCHER: Mr. Bianco -- 2 THE COURT: Just a minute. 3 THE BAILIFF: I'm sorry. Do all witnesses 4 have to step outside, sir? 5 THE COURT: I'm sorry? 6 THE BAILIFF: Do witnesses have to step 7 outside when they testify? 8 THE COURT: No, no. He's a party to it. 9 THE BAILIFF: Okay. 10 THE COURT: I think we're all set here, 11 Steve. Thank you. 12 And if you want to have a seat next to 13 counsel, you can. 14 MR. BLANSCET: Thank you, Your Honor. 15 THE COURT: And I don't see any other 16 parties in here. Are there any? Just you two, Mr. 17 Bianco and yourself. All right. Go ahead. 18 DIRECT EXAMINATION 19 BY MS. LASCHER: 20 Q. Mr. Bianco, do you currently ride a motorcycle? 21 A. Yes, ma'am. 22 Q. How long have you been riding motorcycles? 23 A. 1963. 24 Q. Do you currently possess a motorcycle helmet? 25 A. Yes, ma'am. 26 Q. Do you know whether it complies with California 31 1 motorcycle helmet law? 2 A. I certainly think it does. 3 Q. What makes you think that? 4 A. I've done pretty extensive research on the law 5 and how it's supposed to be applied, and I went 6 through all my case in Bianco versus CHP trying to 7 understand it. 8 Q. From looking at your helmet, can you tell 9 whether it complies with the motorcycle helmet law? 10 A. Actually, no, but -- 11 THE COURT: Did it have a DOT insignia or 12 certification on the back of it about an inch and 13 three eighths from the edge of the bottom? 14 THE WITNESS: All three of them did when 15 they were original, yes, sir. 16 THE COURT: And does it still have that? 17 THE WITNESS: I think two of them still 18 have it. 19 THE COURT: Okay. 20 BY MS. LASCHER: 21 Q. Do you have any -- apart from the DOT 22 certification on the helmet, in looking at the helmet 23 do you have any way of knowing whether it complies 24 with the standards in Federal motor vehicle safety 25 standard 218? 26 A. No. 32 1 Q. Do you know whether -- have you ever asked the 2 California Highway Patrol for guidance about how to 3 tell if your helmet complies with California helmet 4 law? 5 A. Yes. 6 Q. When did you last do that? 7 A. Late '90s. 8 Q. What was the response at that time? 9 MS. TABE: Objection, Your Honor. 10 THE COURT: Sustained. 11 MS. LASCHER: May I inquire of the basis? 12 Just the time of the inquiry, is that the basis for 13 the objection? 14 THE COURT: He said in the 1990s, but he's 15 already answered that. 16 BY MS. LASCHER: 17 Q. Since 2005 have you made any contact with 18 the Highway Patrol to ask about how you can tell if 19 a motorcycle helmet is approved by the Highway 20 Patrol? 21 MS. TABE: Objection; leading. 22 THE COURT: Overruled. It does not 23 suggest an answer. 24 THE WITNESS: I -- I can't remember -- 25 I haven't personally asked a Highway Patrolman or 26 haven't personally talked to a Highway Patrolman. 33 1 BY MS. LASCHER: 2 Q. Since 2005 have you asked anyone for assistance 3 in -- anyone in a government agency of any sort for 4 assistance in identifying a helmet that would comply 5 with the California motor vehicle safety -- motorcycle 6 helmet law? I'm sorry. 7 MS. TABE: Objection; relevance and 8 ambiguous. 9 THE COURT: Sustained. 10 THE WITNESS: We did -- 11 THE COURT: No, you can't -- 12 MS. LASCHER: The objection was -- 13 THE COURT: Next question. 14 BY MS. LASCHER: 15 Q. Are you aware of any list of approved 16 motorcycle helmets? 17 A. No. 18 Q. Are you aware of any list of non-approved 19 motorcycle helmets? 20 A. No. 21 Q. Do you know the meaning of the -- have you 22 seen -- do you know the meaning of the phrase 23 "obviously not a motorcycle helmet"? 24 A. I understand the words individually, but the 25 meaning or the meaning as I would perceive it is 26 rather illusive. 34 1 MS. LASCHER: I have no further questions. 2 THE COURT: Cross-examination. 3 CROSS-EXAMINATION 4 BY MS. TABE: 5 Q. Good morning, Mr. Bianco. My name is Lillian 6 Tabe from the Attorney General's Office. I represent 7 the defendants. Isn't it true that you have not 8 received a helmet citation since 1995/1996? 9 A. I think my last helmet citation was 1997. I 10 might be wrong, but I think it was 1997. 11 MS. TABE: Thank you. Nothing further. 12 THE COURT: Redirect? 13 MS. LASCHER: Nothing further, Your Honor. 14 THE COURT: May this witness step down and 15 be excused? 16 MS. LASCHER: Plaintiffs will call Don 17 Blanscet. 18 THE COURT: No, no. You have to answer my 19 question first. 20 MS. LASCHER: Sorry. 21 THE COURT: May this witness step down and 22 be excused? 23 MS. LASCHER: Oh, yes, Your Honor. I'm 24 sorry. I thought he was. 25 THE COURT: Any problem with that? 26 MS. HUSTER: No objection, Your Honor. 35 1 MS. TABE: No objection. 2 THE COURT: Okay. You may step down. 3 Thank you, sir. All right. Next witness, please. 4 DONALD BLANSCET 5 called as a witness on behalf of 6 the Plaintiff, having been first duly sworn, was 7 examined and testified as follows: 8 THE COURT: State your name, please, and 9 spell your last name. 10 THE WITNESS: My name is Donald Blanscet, 11 B-l-a-n-s-c-e-t. 12 DIRECT EXAMINATION 13 BY MS. LASCHER: 14 Q. Good morning, Mr. Blanscet. What is your 15 occupation? 16 A. I'm a mechanic. 17 Q. What is your level of education? 18 A. High school diploma and one semester of junior 19 college. 20 Q. Do you ride a motorcycle now? 21 A. Yes, I do. 22 Q. How long have you been riding motorcycles? 23 A. 31 or 32 years. '76 or '77 I bought my first 24 bike. 25 Q. Do you own a motorcycle helmet now? 26 A. Yes, I do. 36 1 Q. Can you estimate how many motorcycle helmets 2 you've owned since you began riding motorcycles? 3 A. I distinctly recall eight helmets. 4 THE COURT: Do you have your motorcycle 5 helmet with you today? 6 THE WITNESS: No, sir, I do not. I didn't 7 ride my motorcycle today. 8 BY MS. LASCHER: 9 Q. When was the last time you were cited for a 10 violation of the motorcycle helmet law? 11 A. Inspected or cited? 12 Q. Cited. 13 A. August 2002. 14 Q. I'm sorry. 2002? 15 A. Yes, ma'am. 16 Q. Was that a citation by the California Highway 17 Patrol? 18 A. Yes, ma'am. 19 MS. LASCHER: And as I understand the 20 Court's ruling, any further questions about a citation 21 in 2002 would be irrelevant. I'm prepared to examine 22 Mr. Blanscet if the Court would allow. 23 THE COURT: I've already ruled. 24 BY MS. LASCHER: 25 Q. When was the last time you were stopped by a 26 police officer of any kind when you were riding your 37 1 motorcycle? 2 MS. HUSTER: Objection. Court's in limine 3 motion regarding affiliated law enforcement agencies. 4 THE COURT: Sustained. 5 BY MS. LASCHER: 6 Q. When was the last time you were stopped by a 7 CHP officer while you were riding your motorcycle? 8 MS. HUSTER: Objection; overbroad. 9 THE COURT: For -- 10 MS. LASCHER: Foundational, Your Honor. 11 THE COURT: -- a helmet law violation? 12 MS. LASCHER: Well, I have to ask when he 13 was stopped before I can ask what he was stopped for. 14 That's why I -- 15 THE COURT: Well, you don't have to, but 16 go ahead. 17 BY MS. LASCHER: 18 Q. When was the last time you were stopped by a 19 CHP officer while you were riding your motorcycle 20 since 2005? 21 A. Well, I was stopped last year several times, so 22 I'm going to say November -- 23 THE COURT: It may not be relevant unless 24 it deals with the helmet law. 25 MS. LASCHER: I'm going to ask -- that was 26 my next question, Your Honor. 38 1 THE COURT: Go ahead. 2 BY MS. LASCHER: 3 Q. When you were -- the most recent of those 4 stops, what did the officer tell you was the reason 5 for stopping you? 6 A. My helmet. 7 MS. HUSTER: Objection. 8 THE WITNESS: He wanted to see my helmet. 9 THE COURT: Wait a second. What was the 10 reason the officer told you that they stopped you? 11 THE WITNESS: "I want to see your helmet" 12 is exactly what he said to me when I said "Why did you 13 stop me?" 14 THE COURT: Okay. When did that occur? 15 THE WITNESS: November of last year. 16 THE COURT: Of 2007? 17 THE WITNESS: Yes, sir. 18 MS. LASCHER: I think there was an 19 objection, Your Honor. 20 MS. HUSTER: Withdrawn. 21 BY MS. LASCHER: 22 Q. Could you relate the conversation with the 23 officer after that? 24 A. I cannot -- 25 MS. HUSTER: Objection; hearsay. 26 THE WITNESS: -- represent it to be a true 39 1 and accurate replay, but basically "Why did you stop 2 me? I want to see your helmet." I said, "What do you 3 want to see about it?" He said, "I just want to see 4 it." And I asked him "Why do you want to see it?" 5 And he says, "I'm not sure if it's a legal helmet or 6 not. I want to inspect it." 7 BY MS. LASCHER: 8 Q. Were you cited at that time? 9 A. No, ma'am. 10 Q. Let's go backwards in time. Do you recall 11 approximately when the next previous time you were 12 stopped by the Highway Patrol concerning your 13 motorcycle helmet? 14 A. August 20th, 2007. 15 Q. How do you recall that date? 16 A. Two days before my deposition. I think my 17 deposition was the 22nd of August, and two days prior 18 to my deposition I was stopped by the California 19 Highway Patrol for my helmet. 20 Q. What happened during that stop? 21 A. Pretty much basically the same thing. "I 22 stopped you because I didn't think you had a helmet 23 on" is what he said. Or excuse me. "I didn't think 24 you had a legal helmet on." And he asked me a few 25 questions, looked at the back of the helmet and I 26 asked him, "Well, what do you think?" He says, "I'm 40 1 not sure. I'm going to give you a pass." 2 Q. Do you recall anything else about that stop? 3 A. Well, I also recall I asked him, which I asked 4 the November officer too -- I have a standard question 5 that I ask, and it was "Can you tell me how to comply 6 with certainty so no police officer will cite me on 7 this?" And every time I get stopped I ask that 8 question. 9 Q. Do you recall what you were told in the 10 November stop? 11 A. "Buy one like mine." 12 Q. Did you ask the officer any more about what he 13 meant by that? 14 A. I asked him if he had a list that I could go by 15 so I could go buy one so I would stop getting stopped. 16 Q. What did he tell you? 17 A. No list. 18 Q. Did you ask that same question in the August 19 stop? 20 A. Yes, ma'am. 21 Q. And what was the answer? 22 A. No list. 23 Q. Do you recall anything else about the August 24 stop? 25 MS. HUSTER: Objection; overbroad, vague. 26 THE COURT: Sustained. Next question. 41 1 BY MS. LASCHER: 2 Q. Did the officer tell you anything else 3 concerning compliance with the helmet law during that 4 August 22, 2007 stop? 5 A. He told me to buy a DOT-approved helmet. 6 THE COURT: What type of helmet? 7 THE WITNESS: A DOT-approved helmet. 8 BY MS. LASCHER: 9 Q. Did you ask him for further clarification of 10 that statement? 11 A. That led to the list. That's why I asked for 12 the list. "How am I going to comply? You guys are 13 always stopping me." He said "Buy a DOT-approved 14 helmet." I said, "Well, have you got a list? I'll go 15 buy the helmet today." 16 Q. What was the next stop previous to August 2007? 17 A. Does a combination -- 18 THE COURT: Before you get to that, I'm 19 sorry to interrupt. On August 20th of 2007 did your 20 helmet in fact have a DOT certification in the lower 21 back of the helmet area? 22 THE WITNESS: Yes, sir. 23 THE COURT: Okay. 24 BY MS. LASCHER: 25 Q. With respect to citations before August 2007 26 and after the beginning of 2005 by Highway Patrol 42 1 officers, do you recall dates of any of those other 2 stops? 3 A. I was stopped -- a combination stop, Highway 4 Patrol and Benicia Police Department on May -- the 5 same date that Richard Quigley was deposed. I think 6 it's May 9th of last year. 7 Q. What happened during that stop with respect to 8 your helmet? 9 A. Well, I had a CHP officer and Benicia Police 10 Department -- they both stopped me, kind of they 11 both -- I pulled into a gas station and they both saw 12 me. I guess they were maybe talking or something and 13 they both bulled up on me, wanted to inspect my 14 helmet. Benicia P.D. wanted -- 15 MS. HUSTER: Objection; hearsay. 16 THE COURT: Next question, please. It's 17 nonresponsive. 18 BY MS. LASCHER: 19 Q. What did the CHP officer say to you during that 20 stop? 21 A. He answered my question of how to comply. 22 Q. What was his answer? 23 A. "Don't know for sure. Buy an approved helmet." 24 Q. Did you ask him for further clarification? 25 A. Asked for a list. 26 Q. And what was his response? 43 1 A. Did not have a list. And I asked him if he 2 could radio in and find out if they had a list in his 3 office, and he said they don't have a list. 4 Q. Did the Highway Patrol officer during that stop 5 say anything to the Benicia police officer concerning 6 your motorcycle helmet? 7 A. Yes, ma'am. 8 Q. What did he say? 9 A. I told the Benicia police officer that I had a 10 legal helmet on and that to my knowledge it complied 11 with all the rules and regulations, and I said -- I 12 pointed to the Highway Patrol officer and I said, "He 13 ought to know." And the Highway Patrol officer said, 14 "Don't ask me. I don't know." 15 Q. Do you recall the dates of any stops previous 16 to this May 2007 stop after 2005 concerning your 17 motorcycle helmet? 18 A. Yeah. I had one in Yuba City. 19 Q. Approximately when was that? 20 A. June of '07, about a month after that last 21 stop. 22 Q. What did the police officer say to you -- the 23 Highway Patrol officer say to you on that occasion? 24 A. I asked him "Why are you stopping me?" And he 25 said, "I want to see your helmet." And I said, "Well, 26 what do you want to see?" He said, "I want to see if 44 1 you've got a DOT sticker back there." I had a DOT 2 sticker and he said, "I'm not sure if you're legal or 3 not but I'm going to let you go." 4 Q. If I were -- do you recall the dates of any 5 other stops between 2005 and 2007 concerning your 6 motorcycle helmet? 7 A. I know there's a couple. I can't be precise. 8 I know it was after November of '05, but I can't 9 really be precise on the dates. 10 Q. Do you know approximately how many there were 11 that you haven't described yet? 12 A. Since 2005? 13 Q. Uh-huh, yes. 14 A. Four. 15 Q. Do you recall any more about the dates and 16 circumstances of those other four stops? 17 A. So one would be January '06 right after New 18 Year's, yeah. 19 Q. What do you recall about that stop concerning 20 your motorcycle helmet? 21 A. CHP officer pulled me over and told me he was 22 going to cite me for an unapproved helmet, and I 23 started arguing with him and told him I wanted to see 24 his watch commander. And I told him this is a legal 25 helmet and I think we've got a problem here so I asked 26 him to call his watch commander, and at that point he 45 1 decided to just back off and let it go, I guess. 2 Q. Did he actually use the words "unapproved 3 helmet"? 4 A. He used the words "DOT approved," I think. 5 "You've got to have a DOT-approved helmet." 6 Q. Do you recall anything else about that stop? 7 A. Other than I demanded his watch commander, I 8 remember that specifically, and that -- 9 Q. When -- 10 A. That made him come to a screeching halt. His 11 whole demeanor changed. 12 Q. Where was that? Where did that stop take 13 place? 14 A. On Highway 80 just north of Sacramento. He was 15 out of the North Sacramento CHP office. 16 Q. Okay. That's one of the four other stops. Do 17 you recall the details of any of the other three? 18 A. April '06 I was coming back from a bike 19 blessing. I got stopped by Sergeant -- I can't 20 remember his last name, a Highway Patrol sergeant out 21 of Nevada, the Grass Valley office. 22 Q. What did he tell you was the reason he was 23 stopping you? 24 A. I needed to have a DOT-approved helmet. 25 Q. Did you have any further discussion with him 26 about a DOT-approved helmet? 46 1 A. Asked him, "How do I know what's a DOT-approved 2 helmet? Have you got a list?" Because I ask them all 3 for a list and they never come up with one, so -- 4 Q. So on that occasion he said he did not have a 5 list? 6 A. He said he had no list but I needed a 7 DOT-approved helmet. 8 Q. Did you ask him anything else about a helmet? 9 A. I asked him, "How can you tell me to go buy 10 what you can't tell me what it is? I mean, you tell 11 me to go buy a DOT-approved helmet but you can't tell 12 me what a DOT-approved helmet is." 13 Q. What did he respond? 14 A. That officer said to me that, "Yeah, we could 15 use a little more guidance from the legislature, but 16 we're just enforcing it the best we can." 17 Q. There are still two stops that you've told us 18 about that you haven't described yet. Do you recall 19 the dates of either of those? 20 A. Yeah. It's going to be May 1st -- the second 21 weekend of May during the frog jumps on the way to 22 Angels Camp. I got stopped by the California Highway 23 Patrol. 24 THE COURT: What year, sir? 25 THE WITNESS: I'm sorry, sir. '06. 26 47 1 BY MS. LASCHER: 2 Q. What did the officer say during that stop? 3 A. "That's not a DOT-approved helmet." 4 Q. Did you ask him the same question you've asked 5 the other officers? 6 A. I asked him, "How do I know what a DOT-approved 7 helmet is? Have you got a list?" He said "No." 8 Q. Was there any further discussion of the helmet 9 at that time? 10 A. No. 11 Q. That leaves us one more citation you haven't 12 identified yet. 13 THE COURT: Wait a second. Were you given 14 citations on each of these events or just stopped? 15 THE WITNESS: I was stopped. 16 THE COURT: You never were given any 17 citation; is that correct? 18 THE WITNESS: That's correct. 19 THE COURT: All right. 20 BY MS. LASCHER: 21 Q. You named eight and you've identified seven. 22 You're doing pretty well. Can you identify the eighth 23 one? 24 A. Pardon me? 25 Q. You've identified seven of eight, I believe. I 26 was wondering if you can remember anything about the 48 1 last of the eight stops? 2 A. The only reason I'm hesitating is the date. I 3 remember the circumstances, and it was September of 4 '06. 5 Q. What were the circumstances that you remember? 6 A. California Highway Patrolman pulled me over, 7 said "I stopped you because you've got an illegal 8 helmet on." 9 Q. Where did that take place? 10 A. That would be on Highway 20 about five, six 11 miles east of Marysville. 12 Q. Did you have a further conversation about your 13 helmet with the officer during that stop? 14 A. I stated to him that I'm not sure there's such 15 a thing as a DOT-approved helmet. "Unless you're 16 going to help me determine what a DOT-approved helmet 17 is, then you've gotta do what you gotta do." And he 18 kind of looked at me and he said "I ride too and I 19 understand what you're saying," and handed me my 20 paperwork back and said "Get out of here." 21 Q. For any of these eight stops you've described, 22 did the officers tell you when they stopped you that 23 they were stopping you for any reason in addition to 24 wanting to look at your helmet or something to do with 25 your helmet? 26 A. That's it. Helmet. 49 1 Q. And apart from your inquiries to these 2 officers -- well, first of all, were you wearing the 3 same helmet on all of these eight occasions? 4 A. No, ma'am. 5 Q. How many different helmets were you wearing? 6 A. Talking about three different helmets. 7 Q. Was there anything that an officer would have 8 found unusual about any of those helmets? 9 MS. HUSTER: Objection; vague. 10 THE COURT: Do you understand the 11 question? 12 THE WITNESS: Not really. 13 THE COURT: I don't either. 14 MS. LASCHER: I'll rephrase it. 15 BY MS. LASCHER: 16 Q. Did the officers on any of those occasions tell 17 you anything more specific than that they wanted to 18 see your helmet, such as offer you a reason they 19 wanted to see your helmet or something about the 20 characteristics of the helmet that caused the stop? 21 MS. HUSTER: Objection; leading. 22 THE COURT: Overruled. You can answer. 23 THE WITNESS: I distinctly remember one 24 officer telling me that he thought -- he stated to me, 25 he said, "I don't think the half shells are legal. I 26 think they have to come all the way down and cover 50 1 your ears, and that's why I stopped you." And we just 2 argued and he didn't cite me, but -- 3 BY MS. LASCHER: 4 Q. Thank you. Since 2005, apart from those 5 inquiries to the officers who stopped you, have you 6 made any other efforts to inquire of the California 7 Highway Patrol how you might comply with the 8 motorcycle helmet law? 9 A. Other than asking, no. I had written a letter 10 to Jonathan Rothman, chief counsel for California 11 Highway Patrol, at one point in time asking one 12 question; how do I comply with certainty with CVC 13 27803. 14 Q. Approximately when did you write that letter? 15 A. '96. 16 Q. Do you know what helmets comply with Federal 17 motor vehicle safety standard 218? 18 A. Do I know? 19 Q. Yes. 20 A. Not really. 21 Q. Do you know what the phrase "obviously not a 22 motorcycle helmet" means? 23 A. No, I do not. 24 Q. Do you know what the phrase "approved 25 motorcycle helmet" means? 26 A. I think that's like chicken lips. I don't 51 1 think they exist. 2 Q. Do you know what the phrase "DOT-approved 3 motorcycle helmet" means? 4 A. I think that's like chicken lips too. They 5 don't exist. 6 Q. Have you ever contacted the United States 7 Department of Transportation for an approved list of 8 motorcycle helmets? 9 A. Yes, ma'am. 10 Q. When did you do that? 11 A. That would have been about '96, '97. It would 12 have been '97, because I inquired of the California 13 Highway Patrol. They told me a DOT-approved helmet, 14 and that's when I went to the DOT and asked for 15 clarification. Then I found out they also don't 16 approve -- 17 MS. HUSTER: Objection with respect to any 18 research or information elicited prior to 2005. 19 THE COURT: Sustained. 20 BY MS. LASCHER: 21 Q. Do you -- since 2005 have you seen any 22 literature produced by the California Highway Patrol 23 explaining how motorcyclists can comply with the 24 motorcycle helmet law? 25 A. Since 2005? 26 Q. Since 2005. 52 1 A. I'm not sure of the date, but I have seen some 2 literature, yes, and I bought a helmet according to 3 that literature. 4 Q. You said you're not sure of the date. Are you 5 sure that it was since 2005? 6 A. No, I'm not. 7 MS. LASCHER: No further questions. 8 THE COURT: Cross-examination. 9 CROSS-EXAMINATION 10 BY MS. HUSTER: 11 Q. Good morning, Mr. Blanscet. 12 A. Good morning. 13 Q. My name is Karen Huster and I represent the 14 defendants in this matter. I just have a few 15 questions for you. It's true that you do not have any 16 paper citations of any citations you received since 17 2005 for a violation of the helmet law, correct? 18 A. That's correct. 19 Q. Okay. And it's true that your most recent 20 citation received for a violation of the helmet law 21 was in August of 2006, correct? 22 THE COURT: I'm sorry. Would you repeat 23 that again? 24 MS. HUSTER: Yes, sir. 25 BY MS. HUSTER: 26 Q. Isn't it true, Mr. Blanscet, that the most 53 1 recent citation that you received for a violation of 2 the helmet law was in August of 2006? 3 THE COURT: He testified 2002, I thought. 4 MS. HUSTER: That's what he testified to, 5 but I'm going to seek to refresh Mr. Blanscet's 6 recollection. 7 THE COURT: Well, that's what he testified 8 to. You can answer that question. Maybe I misheard 9 it. 10 THE WITNESS: Could you repeat it? 11 THE COURT: When was the last time you 12 were cited for a helmet -- 13 THE WITNESS: August '02. August '02, 14 Your Honor. 15 BY MS. HUSTER: 16 Q. August of 2002? 17 A. (Witness nods head.) 18 Q. So since August of 2002 you haven't received 19 any citations in connection with helmets? 20 A. No. 21 Q. Correct? 22 A. That's correct. 23 MS. HUSTER: Nothing further. 24 THE COURT: The times that you were 25 stopped, first the one in November of 2007 which you 26 weren't cited, did you have a DOT certification on the 54 1 back of your helmet on that occasion? 2 THE WITNESS: Yes, Your Honor. 3 THE COURT: Okay. On August 20th of 2007, 4 the helmet that you were wearing when you were 5 stopped, although you weren't cited, did it have a DOT 6 certification on the back? 7 THE WITNESS: I have never worn a helmet 8 that did not have a DOT certification. Never. 9 THE COURT: So that would apply to each of 10 the other times that you were stopped? 11 THE WITNESS: Yes, Your Honor. 12 THE COURT: Okay. Further redirect? 13 MS. LASCHER: No, Your Honor. 14 THE COURT: Any other questions for this 15 witness? 16 MS. HUSTER: No, Your Honor. 17 THE COURT: All right. Thank you, sir. 18 MS. LASCHER: Your Honor, plaintiffs will 19 call Joe Cliff, but may I have a moment with him? 20 He's in the hall. 21 THE COURT: You need a break? 22 MS. LASCHER: No. I need, like, sixty 23 seconds to say good morning to him. I've never spoken 24 to him. 25 THE COURT: Okay. That's fine. I'll tell 26 you what, Counsel. Before you leave, we'll take about 55 1 a five-minute break for the court reporter and then 2 that will give you more than sufficient time. 3 MS. LASCHER: Thank you, Your Honor. 4 THE COURT: Five minutes. 5 (Whereupon a short break was taken.) 6 THE COURT: All right. Back on the 7 record. Counsel are present. We're ready to proceed. 8 Next witness, please. 9 MS. LASCHER: Plaintiffs call Joe Cliff. 10 JOSEPH W. CLIFF 11 called as a witness on behalf of 12 the Plaintiff, having been first duly sworn, was 13 examined and testified as follows: 14 THE COURT: Please come forward and have a 15 seat here, sir. 16 DIRECT EXAMINATION 17 BY MS. LASCHER: 18 Q. Good morning, Mr. Cliff. 19 A. Good morning. 20 MS. LASCHER: Did you want to ask him to 21 spell his name, Your Honor? 22 THE COURT: No, you can go ahead. I 23 thought you would catch on. 24 BY MS. LASCHER: 25 Q. Would you spell your name and -- state your 26 full name and spell it for the record, please. 56 1 A. It's Joseph W. Cliff, and the last name is 2 C-l-i-f-f. 3 Q. Mr. Cliff, what's your occupation? 4 A. I'm a general manager for a machine shop in San 5 Jose. 6 Q. Can you describe your education level, please? 7 A. I have a BA degree and AS degree. 8 Q. What is your BA degree in? 9 A. Geography. 10 Q. What institution? 11 A. San Francisco State. 12 Q. Thank you. Do you ride motorcycles? 13 A. Yes, I do. 14 Q. How long have you ridden motorcycles? 15 A. Off and on, about forty years. 16 Q. Do you wear a helmet when you ride your 17 motorcycle? 18 A. Yes, I do. 19 Q. When was the last time since the beginning of 20 2005 that you were stopped for violating the 21 motorcycle helmet law by a CHP officer? 22 A. In July of 2006. 23 Q. Did the officer tell you the reason he or she 24 was stopping you? 25 A. Yes. 26 Q. Was it a he or she? 57 1 A. It was a he. 2 Q. What was the reason you were given? 3 A. For not wearing a DOT-approved helmet. 4 Q. Did the officer give you any other reason for 5 stopping you? 6 A. No, ma'am. 7 Q. Do you still have the helmet you were wearing 8 at the time? 9 A. Yes, ma'am. 10 Q. Is that the helmet? 11 A. Yes. 12 Q. Does it have a DOT certification on the back of 13 it? 14 A. Yes. 15 Q. Was that certification on the helmet at the 16 time you were stopped? 17 A. Yes. 18 Q. What did the officer say to you after he gave 19 you the reason for stopping you? 20 A. We had a brief conversation where I indicated 21 to the officer that I've had previous citations on 22 this helmet that I've overcome, and he responded that 23 he didn't care and that was about the end of our 24 conversation. 25 Q. Did you tell him what you meant by "overcome"? 26 A. Yes, yes. 58 1 Q. What did you tell him? 2 A. I told him I'd had previous trials on this 3 particular helmet, and he didn't seem to have any 4 interest in my previous history. 5 Q. Did the officer issue you a citation on that 6 occasion? 7 A. Yes. 8 Q. Is that the citation you gave me this morning? 9 A. Yes. 10 MS. HUSTER: Your Honor, I object to the 11 citation inasmuch as plaintiffs were required to 12 submit an exhibit list last Friday. This is the first 13 time I've seen this citation or been made aware of its 14 existence, and so on that basis I object to the 15 admission of the citation. 16 THE COURT: You may have it marked if you 17 wish. 18 MS. LASCHER: Thank you, Your Honor. 19 THE COURT: It will be first in order, 20 Defendant's 1. 21 THE CLERK: Defendant's 1 or Plaintiff's 22 1, Your Honor? 23 THE COURT: I'm sorry. Plaintiff's 1. I 24 apologize. 25 (Plaintiff's Exhibit 1 marked for 26 identification.) 59 1 BY MS. LASCHER: 2 Q. Mr. Cliff, I'm showing you the document that 3 has been marked Plaintiff's Exhibit 1. Do you 4 recognize that? 5 A. Yes, ma'am. 6 Q. Can you describe what it is, please? 7 A. It's the citation I received on July 2nd of 8 2006. 9 Q. Does it -- what is the Vehicle Code violation 10 that's shown on that citation? 11 MS. HUSTER: Objection; the document 12 speaks for itself. 13 THE COURT: I'm sorry? 14 MS. HUSTER: Objection; the document 15 speaks for itself. 16 THE COURT: Overruled. 17 THE WITNESS: 27803(b) Vehicle Code, DOT 18 helmet required, novelty helmet only. 19 BY MS. LASCHER: 20 Q. Before this morning, Mr. Cliff, had you ever 21 shown me this citation? 22 A. Pardon me? 23 Q. Had you ever shown me this citation before? 24 A. No, ma'am. 25 Q. Had you ever shown this citation to any of the 26 plaintiffs before this morning? 60 1 A. No, ma'am. 2 THE COURT: I take it Mr. Cliff is a 3 witness that was known about during the discovery 4 proceedings; is that correct? 5 MS. TABE: Yes, Your Honor. 6 THE COURT: Okay. 7 MS. LASCHER: Plaintiffs offer Exhibit 1. 8 THE COURT: And there's an objection. 9 That's overruled. It will be in evidence. 10 (Plaintiff's Exhibit 1 received in 11 evidence.) 12 BY MS. LASCHER: 13 Q. At the time you were cited in July 2006, Mr. 14 Cliff, did you ask the officer for any kind of 15 guidance concerning compliance with the motorcycle 16 helmet law? 17 MS. HUSTER: Objection; hearsay. 18 THE WITNESS: No, ma'am. 19 MS. HUSTER: Mr. Cliff is not a party. 20 THE COURT: I'm sorry? 21 MS. HUSTER: Mr. Cliff is not a party, so 22 his out-of-court statement is apparently being offered 23 for the truth of the matter; therefore it's hearsay. 24 THE COURT: Overruled. 25 BY MS. LASCHER: 26 Q. Did you -- I'm sorry. Mr. Cliff, could you 61 1 repeat your answer to the question if you remember it? 2 THE COURT: It's already in evidence. 3 MS. LASCHER: I wasn't sure I heard it, 4 Your Honor. 5 THE COURT: So you didn't hear it? 6 MS. LASCHER: I didn't hear the answer. 7 THE COURT: Do you want to read back -- 8 THE WITNESS: I said -- 9 THE COURT: Wait a second. Do you want to 10 read back what the answer was, please. 11 (Record read.) 12 BY MS. LASCHER: 13 Q. Apart from that stop in July 2006, have you 14 ever asked the Highway Patrol for guidance in 15 determining what helmets comply with Vehicle Code 16 Section 27803? 17 A. Before 2006? 18 Q. No. Since -- well, since 2005? 19 A. Yes, ma'am, I have. 20 Q. On what occasion have you done that? 21 A. I submitted a Public Records Act to the CHP in 22 Sacramento. 23 Q. When did you do that? 24 A. That was February 9th of 2007. 25 Q. What was the request that you submitted? 26 A. I asked them a number of questions -- 62 1 MS. HUSTER: Excuse me. Objection. The 2 witness appears to be testifying from notes, and if 3 that's the case we would like to object to the notes 4 or at least have an opportunity to see them. 5 THE COURT: Do you need to look at that, 6 sir, or do you have a recollection of what you wrote? 7 THE WITNESS: Basically, yes. 8 THE COURT: Okay. You can just close that 9 up. 10 THE WITNESS: All right. I asked the CHP 11 for a list of approved helmets, guidance on which 12 helmet I could select to wear while riding my 13 motorcycle. 14 BY MS. LASCHER: 15 Q. What was the -- was it a letter format that you 16 wrote? 17 A. Yes, ma'am. 18 Q. And to whom did you address it? 19 A. The -- 20 Q. If you can recall without looking? 21 A. Yes. The disclosure officer for the CHP. 22 Q. Was that a person in Sacramento? 23 A. It's a department in Sacramento. 24 MS. HUSTER: Objection; secondary evidence 25 rule. 26 THE COURT: I'm sorry? 63 1 MS. HUSTER: The best evidence of this 2 letter is the letter, and the witness is using oral 3 testimony to prove the contents of the writing in 4 violation of Evidence Code 1523, the same issue as 5 before. 6 THE COURT: Overruled. 7 BY MS. LASCHER: 8 Q. The answer was to the disclosure office in 9 Sacramento? 10 A. Yes. 11 Q. Did you receive a response from the disclosure 12 office in Sacramento? 13 A. Yes. 14 Q. Was the response in writing? 15 A. Yes. 16 Q. Do you have a copy of the response? 17 A. Yes. 18 Q. Do you have it here with you today? 19 A. Yes. 20 MS. LASCHER: May I look at it and show it 21 to counsel? 22 THE COURT: I think you better show both 23 to counsel at this time, please. 24 MS. LASCHER: Sure. Do you have a copy of 25 your inquiry, please? 26 THE WITNESS: Yes. 64 1 THE COURT: Are there any other exhibits 2 that are going to be marked that have not been shown 3 to counsel before today? 4 MS. LASCHER: I think there will be a copy 5 of a citation that Mr. Temple received. I would be 6 happy to show counsel that. Otherwise -- 7 THE COURT: Okay. We're going to take a 8 break until 1:30 this afternoon. I want all exhibits 9 that you intend to mark to be shown to opposing 10 counsel, all right? 11 MS. LASCHER: Sure. 12 MS. HUSTER: Your Honor, may I ask that we 13 be provided with copies so that we can actually work 14 from the exhibits rather than just have them passed 15 before our eyes? 16 THE COURT: The clerk will assist you in 17 that. 18 MS. HUSTER: Thank you. 19 MS. LASCHER: Thank you, Your Honor. 20 THE COURT: Okay. 1:30. 21 (Whereupon a lunch break was taken.) 22 THE COURT: Back on the record. Counsel 23 are present. It's 1:30. And were you able to review 24 the various documents that have been marked for -- the 25 next phone that goes off, would you please confiscate 26 it. 65 1 THE BAILIFF: Yes, sir. 2 THE COURT: Were you able to review the 3 documents? 4 MS. TABE: Yes, Your Honor. Counsel 5 provided us with copies approximately at 1:15. 6 THE COURT: Okay. Are we ready to 7 proceed, then? 8 MS. TABE: Just one moment, Your Honor. 9 My co-counsel just stepped outside. She's right 10 outside the door. If I may -- 11 THE COURT: The bailiff will get her. 12 When I say 1:30, I mean everybody is to be in their 13 chair ready to go, please. 14 MS. TABE: Yes. 15 THE COURT: I don't know -- 16 MS. LASCHER: I have the witness, Your 17 Honor. 18 THE COURT: -- why it's so difficult to be 19 ready to go when we set a time. 20 MS. LASCHER: The witness is in the hall, 21 Your Honor. I didn't know if you wanted him in. I 22 have the witness who is on the stand outside. 23 THE COURT: That's fine. 24 (A brief interruption.) 25 THE COURT: All right. We now have 26 everyone present and we're ready to proceed. The 66 1 witness has resumed the stand. Your witness, please. 2 MS. LASCHER: Thank you, Your Honor. 3 I believe Mr. Cliff had copies of his documents. 4 BY MS. LASCHER: 5 Q. Mr. Cliff, you testified that you contacted the 6 Highway Patrol through the Public Records Act on 7 February 9th; is that correct? 8 A. Yes, that's correct. 9 MS. LASCHER: And I'm going to ask the 10 clerk to mark this as next in order. It's a letter -- 11 THE COURT: Plaintiff's 2. 12 MS. LASCHER: Plaintiff's 2, a letter 13 dated February 9, 2007. 14 (Plaintiff's Exhibit 2 marked for 15 identification.) 16 MS. HUSTER: February 9th, 2007? 17 THE COURT: That's what she said. Is that 18 accurate? 19 MS. LASCHER: That's accurate. It has a 20 handwritten date and a phone number on the upper right 21 corner, but the letter itself is dated February 9th. 22 BY MS. LASCHER: 23 Q. Mr. Cliff, is that a copy of the letter -- is 24 that a copy of the letter that you sent to the Highway 25 Patrol? 26 A. Yes, it is. Yes. 67 1 MS. HUSTER: Defendants object to this 2 document inasmuch as it was provided approximately ten 3 minutes ago for the first time. 4 THE COURT: I thought we got these all 5 provided just as we took the break at about 11:30? 6 MS. LASCHER: I had to have them copied, 7 Your Honor. 8 THE COURT: I told you the clerk would do 9 that. 10 MS. LASCHER: I misunderstood. I thought 11 that the clerk would take care of copying the one we 12 had previously submitted. I misunderstood the Court's 13 instructions. 14 THE COURT: No. That's why I took the 15 break. 16 MS. LASCHER: Well, it's my fault, then. 17 I apologize. I thought I was going to give counsel 18 the one -- or have the clerk copy the one and I would 19 arrange to make multiple copies of the other ones. 20 MS. HUSTER: Your Honor -- 21 THE COURT: Now, listen. This is very 22 simple. If there are any documents that you are going 23 to offer for identification and/or evidence, I want 24 you to show that immediately to the opposing side. 25 The clerk will make copies of it so that we don't have 26 all these delays. If you're giving documents to 68 1 people when we take a break at 11:30 just fifteen 2 minutes ago, I don't understand what's going on here. 3 So are there any other documents? 4 MS. LASCHER: No, Your Honor. I gave 5 counsel all of the documents I intend to introduce. 6 THE COURT: At what time? 7 MS. LASCHER: At 1:15 after I had them all 8 copied during the lunch hour. 9 THE COURT: How many documents are there? 10 MS. LASCHER: I think there are six, Your 11 Honor, or seven. There are eight, but one of them was 12 actually an attachment to the -- to one of the other 13 ones. 14 THE COURT: And why weren't these provided 15 earlier? 16 MS. LASCHER: Because Mr. Cliff gave them 17 to me this morning about 11:00 A.M., and then I 18 misunderstood the Court's instruction. I have never 19 even met Mr. Cliff until today. He was named. The 20 Highway Patrol did not depose him so I didn't think 21 that they were interested in this. I apologize to the 22 Court for the delay. I can go on with a different 23 witness. 24 THE COURT: What is your position? 25 MS. HUSTER: Your Honor, in discovery 26 plaintiffs provided the name of Mr. Cliff as a person 69 1 with information about the issues in this lawsuit. We 2 never received any of these documents from the 3 plaintiffs until ten minutes ago. We're in the 4 process of frantically trying to run them by the 5 client, get them identified, orient ourselves to what 6 the documents are. The lack of opportunity to prepare 7 is prejudicial to the defendants. 8 It's not correct for plaintiffs to say 9 that they relied on our representation that we weren't 10 interested in Mr. Cliff. They provided Mr. Cliff's 11 name in response to discovery requests about who had 12 knowledge of the case. They were aware that he was 13 out there. They were aware that he had information. 14 It's unclear, although we're going to find out, what 15 he told counsel about what documents he had and what 16 time, but as it stands there has been no good cause 17 shown for the failure to produce these documents 18 earlier. 19 MS. LASCHER: Your Honor, the Highway 20 Patrol represented in its response to discovery that 21 it did not provide any -- 22 THE COURT: May I see the response, 23 please, and also the question? 24 MS. LASCHER: Yes, Your Honor. May I 25 approach? 26 THE COURT: Show it to counsel first. 70 1 MS. LASCHER: Your Honor, I'm not prepared 2 to do that, and I'm reluctant to delay the Court any 3 further. I would -- 4 THE COURT: You already have. Go ahead 5 and find it so we get this clear. 6 (A brief interruption.) 7 MS. LASCHER: These are the questions, 16 8 through 18. And these are the responses. 9 THE COURT: Okay. You've handed me a 10 number of documents here. What do you want me to look 11 at? 12 MS. LASCHER: Your Honor, I've handed you 13 plaintiff Steve Barron's request for admissions, set 14 number 1, and the CHP responses. The responses aren't 15 stapled is why it looks like so many. 16 THE COURT: Which number are you referring 17 to? 18 MS. LASCHER: Number 16 through 18, Your 19 Honor. 20 THE COURT: Okay. I've looked at the 21 request for admission as it relates to plaintiff, 22 Steve Barron, to the defendant, California Highway 23 Patrol, and their responses to items 16, 17 and 18. 24 And how does this answer the question? 25 MS. LASCHER: Your Honor, the Highway 26 Patrol says that there are no lists and no standards. 71 1 The documents that I'm intending to introduce are a 2 variety of different answers from various highway 3 personnel -- Highway Patrol personnel, including a 4 reference to a bulletin number 970 suggesting that 5 field commanders can answer the questions of what 6 is -- 7 THE COURT: This is Exhibit 2 you're 8 talking about? 9 MS. LASCHER: It would be Exhibit 2 and 10 subsequent exhibits, a whole series of correspondence 11 on the subject. 12 THE COURT: Let's get back to the original 13 question before we get too caught up in this, which is 14 somewhat unclear to me at this point. You didn't 15 receive this from Mr. Cliff until today? 16 MS. LASCHER: That's correct, Your Honor. 17 THE COURT: When today did you receive 18 these documents? 19 MS. LASCHER: Right when Mr. Cliff left 20 the stand about 11:30, just before 11:30. 21 THE COURT: Why would he just bring these 22 to court at this time unless he was requested to bring 23 these to court at this time? 24 MS. LASCHER: He was requested to bring 25 these to court when we received the motions in limine 26 suggesting that -- the Court heard the discussion on 72 1 Friday suggesting that the Court might not permit us 2 to pursue the original evidence we intended to 3 introduce about a number of other citations that other 4 people had received. 5 THE COURT: Does the defendant need time 6 to review these various documents that were handed to 7 you at 1:15, fifteen minutes before court started this 8 afternoon? 9 MS. HUSTER: Yes, Your Honor. And in 10 addition, with the Court's permission I would like to 11 point out various points of discovery. When 12 plaintiffs were aware that Mr. Cliff was a person with 13 facts that supported their claim for declaratory 14 relief, Ms. Tabe deposed witnesses on the subject of 15 Mr. Cliff and what he could provide, and the response 16 given was that he is -- I know who he is. I don't 17 believe we have ever met. He is a motorcycle rider. 18 He received a couple of early traffic citations for 19 wearing a helmet. This is August 23rd of 2007. 20 Plaintiff's counsel was aware of Mr. Cliff's existence 21 and the fact that he had received citations at that 22 time. They have shown no good cause why they didn't 23 produce these documents if they intended to use them 24 at trial. They have been aware of their existence 25 since, at the latest, August 23rd, 2007, as set forth 26 in the deposition of Mr. Bianco that Ms. Tabe took. 73 1 THE COURT: Were you aware, Counsel, that 2 Mr. Cliff had these documents? 3 MS. LASCHER: I was not aware he had these 4 documents, Your Honor. I was aware that Mr. Cliff had 5 received a citation for wearing a helmet from a CHP 6 officer during the summer of 2007, but that's all I 7 was aware of. 8 THE COURT: And he just happened to come 9 to court and bring these documents with him? You 10 weren't aware that he had these documents before this 11 morning? 12 MS. LASCHER: On Friday afternoon after 13 we received the motions in limine, after the Court 14 made its tentative rulings and asked for more 15 information -- not tentative ruling but comments and 16 asked for more information, Mr. Blanscet and I 17 discussed the evidence and I discussed with another 18 person who has some information on the case what could 19 we do to meet these, and I was told Mr. Cliff had some 20 correspondence. At that point I was told Mr. Cliff 21 had some correspondence that would be useful and I 22 asked him to bring it to court with him on Monday and 23 to come to court. 24 THE COURT: How much time do you need to 25 review these roughly eight documents that have just 26 been handed to you this afternoon? 74 1 MS. HUSTER: I think two hours would be 2 reasonable. We have to identify the documents. We 3 have to locate some of them to find an agency who 4 might be able to educate us on what the documents 5 mean. 6 THE COURT: All right. We're going to 7 take the afternoon recess until tomorrow morning at 8 9:00 o'clock. 9:00 o'clock. 9 MS. LASCHER: Your Honor, may I -- in the 10 interest of being a little more efficient for 11 everyone, I believe we have another witness that we 12 can -- if Mr. Cliff can return tomorrow morning, I can 13 put on another witness. It's the CHP witness. 14 THE COURT: Tomorrow morning at 9:00 15 o'clock. 16 MS. LASCHER: Thank you, Your Honor. 17 MS. TABE: Your Honor -- 18 THE COURT: I'm returning these documents 19 to you at this time. 20 MS. LASCHER: Thank you. 21 THE COURT: Please, let's not do this any 22 further. This is really hindering -- not only is it 23 inconvenient to the various witnesses, but it's not 24 the way to put on a case. It's inappropriate. 25 MS. LASCHER: I apologize to the Court. I 26 will say once more for the record that I was 75 1 sandbagged by the rulings on the motions in limine. 2 (Whereupon the proceedings were concluded.) 3 ---ooOoo--- 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 76 1 STATE OF CALIFORNIA ) ) 2 COUNTY OF SANTA CRUZ ) 3 4 5 I, DENISE S. GALLAGHER, Certified Shorthand 6 Reporter, do hereby certify: 7 That I am the Reporter, duly appointed and 8 sworn, who reported the above and foregoing 9 proceedings at the time and place therein stated; 10 That I reported the said proceedings; and that 11 the foregoing pages are a full, true, complete and 12 correct transcript of my shorthand notes taken at said 13 time and place to the best of my ability. 14 15 16 17 18 ______________________________ Denise S. Gallagher, RPR, CSR #9444 19 Official Court Reporter 20 21 22 23 24 25 26