66 Cal.App.5th 1196
Cal. Ct. App.2021Background:
- On March 9, 2014 Park’s car struck the rear of a trailer towed by Jackson; Park later pleaded no contest to misdemeanor DUI arising from the collision.
- The trial court granted Park’s in limine motion excluding evidence of Park’s arrest, conviction, and breathalyzer results unless proper foundation for the BAC machine was laid.
- Officer Powell testified and made statements implying an arrest and a BAC result; the court struck that testimony and admonished the jury to disregard any reference to arrest or BAC.
- During defense closing, counsel repeatedly argued (and displayed a slide) that there was “zero evidence” of arrest, BAC, or conviction and mischaracterized the court’s admonition as favoring the defense; counsel also argued facts not in evidence about plaintiff’s discovery responses and claimed the defense “tracked down” Dr. Lafayette.
- The jury found liability but awarded minimal damages and denied punitive damages; plaintiff moved for a new trial based on attorney misconduct.
- The trial court granted a new trial on causation and damages, concluding defense counsel committed multiple instances of prejudicial misconduct; the Court of Appeal affirmed.
Issues:
| Issue | Jackson’s Argument | Park’s Argument | Held |
|---|---|---|---|
| Whether defense counsel’s closing misrepresented excluded alcohol evidence (arrest/BAC/conviction) and thereby committed misconduct | Counsel misled jury by arguing there was “zero evidence” and by using the court’s admonition to suggest no intoxication evidence existed, exploiting the in limine exclusion | Any improper statements were cured by the court’s admonitions; argument was fair comment on the admitted evidence | Misconduct: counsel improperly argued facts not in evidence and misused the court’s admonition; this was misconduct supporting a new trial |
| Whether arguing and repeating in front of the jury that plaintiff hid Dr. Lafayette and failed to disclose her in discovery was improper | Such assertions were outside the record; repeatedly making them after the court ordered counsel to stop prejudiced plaintiff | Assertions were not improper or, at most, harmless given later admonitions | Misconduct: counsel repeatedly argued matters not in evidence and continued after being ordered to stop; prejudicial |
| Whether counsel’s comments about plaintiff’s failure to call certain witnesses (co-workers, early treating providers) were proper use of CACI No. 203 | Arguing the absence of equally available witnesses and invoking CACI 203 improperly suggested plaintiff’s evidence was deliberately weak or concealed | Defense contends the jury could consider failure to produce stronger evidence under CACI 203 | Trial court also found these arguments improper; combined with other misconduct, they contributed to prejudice (affirmed) |
| Whether the trial court abused its discretion in ordering a new trial for misconduct and prejudice | New trial necessary because misconduct caused a miscarriage of justice and likely led to inadequate damages and denial of punitive relief | The court abused its discretion because admonitions cured any harm and substantial evidence supports the verdict | No abuse of discretion: appellate court independently found prejudice reasonably probable; affirmed new trial |
Key Cases Cited
- Hoffman v. Brandt, 65 Cal.2d 549 (Cal. 1966) (misconduct to assert facts not in evidence that could be refuted by excluded proof)
- Frio v. Superior Court, 203 Cal.App.3d 1480 (Cal. Ct. App. 1988) (party may not use evidentiary sanctions as a shield or to mislead jury)
- Cordi v. Garcia, 39 Cal.App.2d 189 (Cal. Ct. App. 1940) (error to argue contents of excluded documents or imply more favorable facts than record supports)
- Sabella v. Southern Pac. Co., 70 Cal.2d 311 (Cal. 1969) (dis. opn.) (counsel may not suggest facts not in evidence that could be contradicted by excluded material)
- Hansen v. Warco Steel Corp., 237 Cal.App.2d 870 (Cal. Ct. App. 1965) (serious misconduct to argue importance of excluded evidence and invite inference therefrom)
- Garcia v. ConMed Corp., 204 Cal.App.4th 144 (Cal. Ct. App. 2012) (attorney misconduct is an irregularity warranting a new trial when prejudicial)
- Oakland Raiders v. National Football League, 41 Cal.4th 624 (Cal. 2007) (standard of review for new trial orders: abuse of discretion)