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Jane Doe, Esq.
Attorney at Law
123 Fourth Street
Anytown, CA 92601
(987) 654-3210
Bar No. 888888
Attorney for Mark Reckless
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE
MARLA HELPLESS,
Plaintiff,
vs.
MARK RECKLESS,
Defendant
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Case No.: 04 CC 000001
DEFENDANT’S TRIAL BRIEF
TRIAL DATE: July 1, 2004
DEPT: C-6
TIME: 9:00 A.M.
Defendant Mark Reckless (hereinafter “Reckless”) submits the following trial brief:
I
Statement of Facts
On January 10, 2001, Helpless had been driving her 1983 Plymouth Voyager southbound on
the I-405 freeway. Upon nearing the Brookhurst Street exit, in the city of Fountain Valley, she
slowed to the exit speed, of approximately 35 miles per hour. Helpless claims that she saw,
directly ahead of her, a blue minivan suddenly swerve erratically to the left. She states that the
unknown driver of the minivan swerved because a large cardboard box was in the middle of her
lane. Eyewitnesses reported that the box fell off the bed of a red pick-up truck, which had been

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driving on the off-ramp, in front of the minivan. While the pick-up truck’s owner has not yet
been identified, the police say they have partial license plate information. Helpless deliberately
stepped on the brakes and brought her vehicle to a sudden halt, in front of the box. The car
directly behind Helpless, a white Ford Bronco, was that of the defendant, Mark Reckless.
Reckless was driving at approximately 40 miles per hour, when Helpless applied the brakes.
Although Reckless has left 10 to 15 feet of room between his car and Helpless’, he could not
apply his brakes soon enough to avoid striking Helpless’ vehicle, from behind. The posted speed
limit on the off-ramp was 40 miles per hour.
Helpless claims she sustained severe and debilitating injuries as a result of the accident, and
sought medical treatment from various medical practitioners, including an orthopedic surgeon, a
physical therapist, and a chiropractor. Various medical practitioners treated Helpless, for over 12
months. Helpless’ chiropractor and physical therapist treated her for two years.
Helpless claims that her total medical expenses, as a result of the accident, were $10,759.00.
Helpless has filed a complaint for negligence, to recover, from Reckless, damages in the amount
of $60,759.00; $10,759.00 of which are medical costs. The remaining $50,000.00 are for
Helpless’ alleged pain and suffering and continued physical pain, as a result of the accident.
Helpless also claims that she is unable to locate or identify the driver of the pick-up truck,
who had been responsible for dropping the box on the freeway off-ramp, and this defendant is
named as a DOE in plaintiff’s complaint (as well as in Reckless’ cross-complaint). Plaintiff has
not named the driver of the blue minivan, who swerved in front of her, as a defendant in her
complaint.
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II
Reckless is not liable for negligence
Helpless’ argument regarding common law negligence does not satisfy all four requirements
needed to prove negligence, namely: (1) duty, (2) a breach of that duty, which (3) proximately
causes (4) an injury to a plaintiff to whom the duty is owed (Civ. Code, §1708). Reckless hit
Helpless with his car, causing proximate physical injury to Helpless. However, Reckless did not
breach the duty, of driving in a reasonably safe manner, which was owed to Helpless. Reckless
adhered to the posted speed limit and also left a 10 – 15 foot space as cushion, between his
vehicle and that of Helpless. Reckless acted in a manner that any reasonably prudent person
would be expected to act, in the exact circumstances discussed in this case.
A case that distinguishes sole liability, associated with a plaintiff, in a complaint for
negligence is the California Supreme Court case entitled DeArmond v. Southern Pacific
Company. An action for wrongful death and personal injuries arose from a collision between a
vehicle and a train, which took place at a railroad crossing, in Yuba County, in November of
1961. (253 Cal.App.2d 648, 651). Trial court found for the railroad company and determined that
the motorist of the Ford sedan was entirely liable for negligence. The motorist’s negligence was
the proximate cause of the accident (253 Cal.App.2d 648, 648).
“Evidence produced by defendants showed that at and before the collision, the headlight o the
train’s engine was on, its bell was ringing constantly, the train was travelling at a speed variously
estimated by defendants’ witnesses at from 30 to 35.5 miles per hour…the speed limit for trains
was 60 miles per hour (253 Cal.App.2d 648, 651).” Plaintiff in DeArmond v. Southern Pacific
Company appealed, the court of appeals still finding for the defendant. The California Supreme
Court affirmed judgment for the defendant (253 Cal.App.2d 648, 658). The court’s findings

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emphasized the duty and standard of care, to which the defendant was held. The defendant’s
precautions highlighted a strong adherence to Civil Code 1708, in DeArmond. Reckless contends
that the principles demonstrated in DeArmond are also shown in his case.
Similar to DeArmond, Reckless adhered to the speed limit during the incident. He also kept a
safe distance behind Helpless, on the road. Reckless took all necessary precautions possible, to
avoid colliding with Helpless’ car. Reckless is not liable for negligence in that his immediate halt
was a reaction to Helpless swerving on the road. Reckless’ action was a secondary to that of
Helpless, in the chain of events that day. Therefore, Helpless fails to prove all requisite elements
needed to show negligence, as a cause of action, against Reckless.
III
Noneconomic damages should be apportioned.
Civil Code section 1431.2 states: “In any action for personal injury, property damage, or
wrongful death, based upon principles of comparative fault, the liability of each defendant for
non-economic damages shall be several only and shall not be joint. Each defendant shall be
liable only for the amount of non-economic damages allocated to that defendant in direct
proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered
against that defendant for that amount.” The doctrine governing such code is associated with the
indulgent “deep pocket” process – a notable tendency in which many plaintiffs, in a lawsuit, sue
those who may have great economic means to pay damages (Civ. Code, §1431).
“Under joint and several liability, if [defendants] are found to share even a fraction of the
fault, they often are held financially liable for all the damage. The People – taxpayers and
consumers alike – ultimately pay for these lawsuits in the form of higher taxes, higher prices and
higher insurance premiums” (Civ. Code, §1431). As a result, the state of California has adopted

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the policy entailed in Civil Code section 1431.2, in order to counteract such inequity and
unfairness. Further, the initiative measure of Proposition 51, included in the code, distinguishes
between economic and non-economic damages, in a personal injury suit:
“For the purposes of this section, the term ‘non-economic damages’ means subjective, non-
monetary losses including, but not limited to, pain and suffering, inconvenience, mental
suffering, emotional distress, loss of society and companionship, loss of consortium, injury to
reputation and humiliation” (Civ. Code, §1431.2). The relevance to the civil code can be seen in
Helpless’ complaint against Reckless. In it, Helpless alleges pain and suffering. She asks for
judgment, in the amount of $50,000 (an amount that she calls “moderate”). According to the
same civil code, economic damages shall be construed as those which involve “monetary loss,
medical expenses, loss of earnings, burial costs, loss of use of property, costs to repair or
replacement, costs of obtaining substitute domestic services, loss of employment and loss of
business or employment opportunities ” (Civ. Code, §1431.2). Since it is the plaintiff’s
responsibility to mitigate damages in a personal injury case, Reckless argues that Helpless did
not take enough steps to keep her damages within reason. Helpless over-treated her physical
injuries. The combined three year period, for which Helpless sought medical help, is excessive.
Reckless asks court to reduce Helpless’ damages, and also asks for apportionment of all
noneconomic damages (pain and suffering) among several defendants involved in this case.
IV
Other drivers involved in accident should be held liable to their share of fault.
Reckless contends that Helpless should exhaust every effort to locate driver of the blue mini-
van, which swerved in front of Helpless, during the accident. Reckless also asks that comparative
fault of the driver of the red pick-up truck be measured and considered, in non-economic

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damages to be paid. The unknown driver’s financial capability to pay damages is also unknown.
But that is not to say that he/she can necessarily be bankrupted in this case. If Helpless did
enough research and due diligence to seek the driver out, she could sue him/her as well – thus
contributing to apportioned non-economic damages.
In her trial brief, Helpless claims that Reckless cites a dissenting opinion in a case that she
says supports her argument for joint and several liability, thereby weakening Reckless’
argument. Helpless also asserts that Reckless misinterprets FN4 of Evangelatos v. Superior
Court (1975) 44 Cal.3d 1188, 753(1988) . Reckless does, in fact, cite the dissenting judge’s
opinion in Evangelatos. But he stands by his reference to this case, as support for Reckless’
argument. In this personal injury case, the California Supreme Court further examined the merit
of the initiative measure Proposition 51 (codified as Civil Code section 1431.2).
In July 1980, plaintiff Gregory Evangelitos, age 18 and a high school student at the time, was
injured in his home, while attempting to make fireworks with chemicals he bought at a retail
store (44 Cal.3d 1188, 1195). Plaintiff sued the retailer, wholesale distributor, and four
manufacturers of the chemicals he used (44 Cal.3d 1188, 1195). Evangelatos sought damages
and claimed that all defendants were liable for negligence and strict liability (44 Cal.3d 1188,
1195) . The causes of action against all manufacturers were dismissed (44 Cal.3d 1188, 1195).
Almost five years after the action had been filed, the case was assigned for trial (44 Cal.3d 1188,
1195). Before the trial began, plaintiff and the two remaining defendants filed motions with the
trial court seeking a determination whether Prop. 51, which had been approved by the voters just
three weeks earlier at a prior election, would be applied in this case (44 Cal.3d 1188, 1195). Trial
court concluded that Prop. 51 was validly enacted as well as constitutional (44 Cal.3d 1188,
1195). It also ruled that the measure applied to all cases, and “that in determining each

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defendant’s ‘several’ liability for a portion of plaintiff’s noneconomic damages under the
proposition, the trier of fact may consider the conduct of all persons whose fault contributed to
plaintiff’s injury, not just the conduct of plaintiff and defendants who are parties to the action (44
Cal.3d 1188, 1195). Finally, trial court also held “that for purposes of apportioning fault in this
case, the summary judgment that had been entered in favor of three manufacturers constituted a
determination that no causative fault could properly be attributed to them” (44 Cal.3d 1188,
1195). On appeal by both parties, the Court of Appeals ruled that the matter was concluded by
trial court (44 Cal.3d 1188, 1196).
In taking into consideration defendants’ comparative fault and associating the joint and
several aspect of suing multiple defendants, the California Supreme Court then held that Prop 51
was, in fact, constitutional (44 Cal.3d 1188, 1227). It also held that the Court of Appeals erred in
applying Proposition 51 to other personal injury cases that were filed, prior to the June 3, 1986
date of adoption of Prop. 51 (44 Cal.3d 1188, 1227). Therefore, the California Supreme Court
affirmed, only in part, the decision of the Court of Appeals, in Evangelatos (44 Cal.3d 1188,
1227). And although Helpless looks to dismantle Reckless’ argument, by claiming that an
argument from a dissenting judge in Evangelitos is weak, Helpless misinterprets the highest
holdings of this case.
Judge Kauffman merely disagreed with the retroactive application of Prop. 51 in Evangelatos,
though he still noted the constitutionality and fairness of Prop. 51. The California Supreme Court
affirmed, in part, the appellate court’s decision. It also reversed, in part, the appellate court’s
decision. Kaufman’s dissent affirmed the appellate court’s decision, in Evangelatos, in its
entirety. And the appellate court’s decision still favored the defendant’s position. In a greater
sense, Kaufman, despite his dissent, supports Reckless’ argument after all. He supported

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apportionment of noneconomic damages in a personal injury suit. Kaufman’s opinion and the
overall disposition of the California Supreme Court in Evangelatos transcends to Helpless’ case
against Reckless. Apportionment of noneconomic damages serves as a reasonable responsibility,
to be imposed on the several defendants in this case. Such apportionment still strives to make the
plaintiff whole.
To support her argument, Helpless cites an excerpt from DaFonte v. Up-Right, Inc. (1992) 2
Cal.4th 593, 7 Cal.Rptr.2d 238; 828 P.2d 140, calling it “pertinent” to the outcome of the appeals
case. “The express purpose of Proposition 51 was to eliminate the perceived unfairness of
imposing ‘all the damage on defendants who were found to share [only] a fraction of the
fault’(§1431.1, subd. (b).) In this context, the only reasonable construction of section 1431.2 is
that a ‘defendant[‘s] liability for noneconomic damages cannot exceed his or her proportionate
share of fault as compared with all fault responsible for the plaintiff’s injuries, not merely that of
‘defendant[‘s]’ present in the lawsuit (CF., Evangelitos, supra, 44 Cal.3d at p.1242, fn. 4, conc.
& dis. Opn. Of Kaufman, J. [damages must be apportioned among ‘universe of tortfeasors’
including ‘nonjoined defendants’].) [emphasis added].”
Reckless claims that that very excerpt does nothing to refute his argument but actually
supports it. Both Helpless and Reckless read the same opinion and have two very different
interpretations of it. Such result leads Reckless to believe that it is, in fact, Helpless who has
misread DaFonte.
When an injured employee sued a manufacturer for negligence and product defect, Prop. 51
was, again, applied - thus reducing the amount of fault attributed to the manufacturer (2 Cal. 4th
593, 596). The California Supreme Court reversed the judgment of the Court of Appeals,
remanded the case (2 Cal. 4th 593, 596), and asked the Court of Appeals to re-examine the

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judgment amount against the defendant (2 Cal. 4th 593, 605). DaFonte actually sheds light on a
plaintiff’s potential contributory negligence in a personal injury suit and further explains the
merit of Prop.51 and its invaluable application.
“…Defendants no longer have to pay an injured employee’s noneconomic damages caused by
the fault of another, and the employee, like any other tort victim, bears the resulting risk of loss”
(2 Cal.4th 593, 603). DaFonte illustrates that the doctrine behind Prop. 51 is not about which
defendants can pay damages or who has the “deepest pockets.” On the contrary, the case
demonstrates the notion of limiting liability, in fairness towards defendants who caused the least
amount of damage, in a personal injury suit. Once again, such principles of equity transcend to
the case against Reckless. Contrary to Helpless’ argument, Reckless does not invoke the ruling
of DaFonte to escape all responsibility in this case. Rather, Reckless asks that a third party
defendant’s own liability be additionally considered, with respect to damages.
V
If Reckless is liable at all, it is for economic damages only.
The excessive treatment of Helpless’ injuries and own contributory negligence in the incident
call into question the amount of noneconomic damages actually attributed to any one defendant.
However, Reckless does not dispute the physical complications and health issues that have
resulted from this auto accident. Reckless claims all responsibility concerning reasonable
economic damages. Yet Reckless still contends that Helpless should invest a great deal of due
diligence into identifying and locating the driver of the minivan. This driver can not be deemed
unavailable or potentially bankrupt, if Helpless did not exhaust all her efforts to find the driver.

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VI
CONCLUSION
In conclusion, Reckless respectfully asks this court to consider Reckless’
arguments and reassess the exact portion of liability belonging to the unknown driver in this
case. If Reckless is liable at all, in this case, it is for economic damages only, with the contention
that Helpless still over-treated her injuries. Helpless has not proven Reckless was negligent, and
therefore does not have sufficient ground to argue that Reckless be solely liable for all of her
non-economic damages.
Dated this 31st of May, 2004
Jane Doe, Esq.
Attorney for Defendant Mark Reckless