Jenkins v. Jpmorgan Chase Bank, N.A.

• Citation: 216 Cal.App.4th 1541
• Decision Date: 12 June 2013
• Docket Number: G046121.
• Parties: DIANE JENKINS, Plaintiff and Appellant, v. JPMORGAN CHASE BANK, N.A., et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

216 Cal.App.4th 1541

DIANE JENKINS, Plaintiff and Appellant,
v.
JPMORGAN CHASE BANK, N.A., et al., Defendants and Respondents.

No. G046121.

Court of Appeals of California, Fourth District, Division Three.

June 12, 2013.

[Modification of opinion (216 Cal.App.4th 359 [___ Cal.Rptr.3d ___]), upon denial of rehearing.]

THE COURT. — IT IS ORDERED that the opinion filed herein on May 15, 2013, be modified as follows and the petition for rehearing is DENIED:

1. On page 2, last line of first full paragraph [216 Cal.App.4th 363, advance report, 1st par., last line], add the words "on liability and damages" to the end of the sentence.

2. On page 3, last line (sentence carries over to page 4) [216 Cal.App.4th 364, advance report, 4th par., lines 10-11], replace "At the close of plaintiffs' case, Bert's asked" to read: "After the Pedeferri plaintiffs rested, Bert's moved ...."

3. On page 4, carry-over paragraph from page 3 [216 Cal.App.4th 364, advance report, 4th par., 1st line], substitute for the last sentence the following: "The court and the parties treated the motion as timely, and the court denied the request."

4. On page 5, second full paragraph, first sentence [216 Cal.App.4th 365, advance report, 4th par., 1st line], replace "White settled with all plaintiffs" to read: "White settled with the Pedeferri plaintiffs...."

5. On page 5, second full paragraph [216 Cal.App.4th 365, advance report, 4th par., last line], substitute for the last sentence the following: "White has submitted a brief aligned with the Pedeferri plaintiffs in resisting Bert's request for a new trial."

6. On page 13, first full paragraph, fifth line [216 Cal.App.4th 372, advance report, 1st full par., 5th line], add "(Raven H.)" after "1025."

7. On page 16, second full paragraph, add footnote (which will be footnote 2) after the first sentence [216 Cal.App.4th 375, advance report, 1st full par., 4th line], which will read:

216 Cal.App.4th 1541b

For the first time in their petition for rehearing, the Pedeferri plaintiffs argue that Bert's forfeited this issue by not moving to strike this testimony until they had rested their case. We disagree. The trial court allowed the toxicologist to offer his opinion based on assumptions to be proven up by other evidence. (Evid. Code, § 403, subd. (b), (c).) In these circumstances, Bert's motion to strike was "timely made" (id., § 353, subd. (a)), because it was made as soon as Bert's knew the Pedeferri plaintiffs had not established a factual foundation for the toxicologist's assumptions — that is, when the Pedeferri plaintiffs rested their case-in-chief. The Pedeferris plaintiffs contend that motions to strike made after a party rests cannot be timely...