42 Cal.App.5th 199
Cal. Ct. App.2019Background
- Plaintiff Zulma Unzueta sued anesthesiologist Dr. Asmik Akopyan for medical malpractice after an epidural during childbirth; Unzueta’s right leg was left permanently paralyzed. The jury found Akopyan breached the standard of care but that the breach was not a substantial factor in causing the injury; judgment entered for Akopyan.
- During voir dire defense counsel used seven peremptory challenges, six of which removed prospective jurors who were Hispanic (four strikes on Feb. 7; two more on Feb. 8 when selecting alternates).
- The trial court sua sponte raised a Batson/Wheeler challenge and found a prima facie case of group bias, but it elicited explanations only for the two strikes made on Feb. 8 and declined to require justification for the earlier four strikes.
- On appeal the Court of Appeal concluded the trial court erred by failing to require nondiscriminatory explanations for all six challenged Hispanic jurors and conditionally reversed and remanded for completion of Batson/Wheeler steps two and three as to all six jurors.
- The court affirmed other rulings: admitting Dr. Zakowski (an expert designated and deposed earlier by a codefendant) and excluding evidence of Akopyan’s remote 1992 misdemeanor and related license-application materials (Evidence Code §352); it also rejected Unzueta’s closing‑argument misconduct claims.
- On remand the trial court must elicit defense counsel’s reasons for excusing the first four Hispanic jurors (Medina, Quintero, Henriquez, Villarreal), evaluate credibility, and either order a new trial if purposeful discrimination is found or reinstate the judgment if the reasons are race‑neutral and credible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Batson/Wheeler: trial court failed to obtain reasons for first four Hispanic strikes | Unzueta: defense counsel’s pattern of striking Hispanic jurors created a prima facie case; court should have required explanations for all six challenged jurors | Akopyan: plaintiff forfeited the challenge by not raising it earlier; the court’s sua sponte inquiry covered only the Feb. 8 strikes | Reversed conditionally and remanded: trial court erred; must complete step 2 and 3 for all six jurors and either order new trial or reinstate judgment based on credibility of reasons |
| Admissibility of Dr. Zakowski (undeclared expert for Akopyan) | Unzueta: Zakowski was not designated by Akopyan and should have been excluded under CCP §2034.300 | Akopyan: Zakowski had been designated and deposed by codefendant White Memorial (exception under CCP §2034.310) | Affirmed: court properly allowed Zakowski to testify on causation because he was designated and deposed by the codefendant and deposition showed causation opinion was within scope |
| Exclusion of criminal record and license-application evidence | Unzueta: evidence of 1992 theft conviction and alleged nondisclosure to Medical Board should impeach Akopyan’s credibility and competence | Akopyan: evidence is remote and unduly prejudicial; renewal-app questions did not require disclosure of the earlier conviction | Affirmed: court did not abuse discretion under Evid. Code §352; any error would be harmless because causation evidence would not likely be changed by such impeachment |
| Closing argument misconduct | Unzueta: defense counsel’s purse gesture and remarks appealed to sympathy and implied defendant would suffer financially | Akopyan: remarks were proper argument about fault and liability; plaintiff forfeited contemporaneous objection | Affirmed: statements were not improper in context; plaintiff forfeited some objections by failing to object or request curative instruction |
Key Cases Cited
- Batson v. Kentucky, 476 U.S. 79 (U.S. 1986) (prohibits race‑based peremptory strikes under Equal Protection)
- People v. Wheeler, 22 Cal.3d 258 (Cal. 1978) (California constitutional rule forbidding race‑based peremptory challenges)
- Johnson v. California, 545 U.S. 162 (U.S. 2005) (prima facie requirement and inference of discrimination standard)
- People v. Avila, 38 Cal.4th 491 (Cal. 2006) (scope of trial court duty to revisit earlier Batson/Wheeler rulings when later strikes create a prima facie showing)
- People v. McDermott, 28 Cal.4th 946 (Cal. 2002) (Batson/Wheeler motion timely before alternates are sworn; discriminatory pattern may emerge during alternate selection)
- People v. Johnson, 38 Cal.4th 1096 (Cal. 2006) (limited remand appropriate to complete Batson/Wheeler steps when trial court terminates inquiry prematurely)
- People v. Scott, 61 Cal.4th 363 (Cal. 2015) (appellate remand required where trial court erroneously ends Batson/Wheeler inquiry)