Unzueta v. Akopyan ( 2019 )

Filed 11/18/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ZULMA UNZUETA, B284305
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC495137)
v.
ASMIK AKOPYAN,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Anthony J. Mohr, Judge. Conditionally reversed
and remanded with instructions.
McMurray Henriks and Yana G. Henriks for Plaintiff and
Appellant.
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson,
Zena Jacobsen; Packer, O’Leary & Corson, Robert B. Packer and
Paul M. Corson for Defendant and Respondent.
__________________________
Zulma Unzueta appeals from a judgment entered after a
jury trial in favor of defendant Asmik Akopyan, M.D., on
Unzueta’s action for medical malpractice. Dr. Akopyan served as
the anesthesiologist during the birth of Unzueta’s child, after
which Unzueta’s right leg was permanently paralyzed. The jury
found Dr. Akopyan breached the duty of care she owed Unzueta,
but the breach did not cause Unzueta’s paralysis. On appeal,
Unzueta contends the trial court erred in denying the
Batson/Wheeler 1 motion the court made sua sponte after
Dr. Akopyan’s attorney exercised peremptory challenges to six
Hispanic prospective jurors out of his seven total challenges.
Unzueta argues the court erred in not requiring defense counsel
to offer nondiscriminatory reasons for his first four challenges
that formed the basis of the trial court’s prima facie finding of
racial bias. We agree.
We conditionally reverse for the limited purpose of
conducting the second and third steps of the Batson/Wheeler
inquiry as to all six challenged Hispanic jurors. The prohibition
against the exercise of peremptory challenges to exclude
prospective jurors on the basis of race or other group bias applies
to civil as well as criminal cases. We credit the trial court for
raising a Batson/Wheeler challenge on its own motion. But once
the court found a prima facie showing of racial bias as to all six
Hispanic prospective jurors, it was required to elicit from
Dr. Akopyan’s attorney justifications for each of the six
prospective jurors, including the four prospective jurors excused
the prior day and the two excusals that immediately precipitated
the court’s sua sponte motion. On remand the court should
1 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal. 3d 258 (Wheeler).
2
require defense counsel to state his reasons for challenging the
first four prospective jurors, and the court must decide in light of
the record as to all six jurors whether Unzueta has proved
purposeful racial discrimination. If the court finds it cannot
adequately perform the second and third stages of the
Batson/Wheeler analysis on remand because of the passage of
time or other reason, or if it determines Dr. Akopyan’s attorney
exercised the peremptory challenges based on racial bias, it
should set the case for a new trial. If the court finds
Dr. Akopyan’s attorney exercised his peremptory challenges in a
permissible fashion, it should reinstate the judgment.
Unzueta also contends the trial court erred in excluding
evidence of Dr. Akopyan’s dishonesty in representations she
made to obtain her medical license and denying Unzueta’s motion
to exclude testimony from Dr. Akopyan’s expert for failure to
designate the witness as an expert. Further, Unzueta asserts
defense counsel’s closing argument was improper. As to these
contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
On November 6, 2012 Unzueta filed her complaint against
Dr. Akopyan, Adventist Health White Memorial Medical Center
(White Memorial), and 50 Doe defendants alleging medical
malpractice in the delivery of her first child. Unzueta alleged
Dr. Akopyan’s negligent administration of an epidural injection
resulted in “paralysis of her right leg from the knee down.”
3
B. Designation and Deposition of Expert Witness Dr. Zakowski
On August 5, 2014 White Memorial served its designation
of expert witnesses on Unzueta. White Memorial designated
Mark Zakowski, M.D., and stated, “The general substance of the
testimony that this expert witness is expected to give: standard of
care, causation and damages.”
On March 12, 2015 White Memorial served its second
designation of expert witnesses on Unzueta, in which it again
designated Dr. Zakowski to testify on the “standard of care,
causation and damages.” Dr. Akopyan did not include
Dr. Zakowski in her expert witness designations. However,
Dr. Akopyan reserved “the right to call any expert witness
identified by any other party.” On July 2, 2015 Unzueta deposed
Dr. Zakowski.
Before trial, White Memorial settled with Unzueta and
withdrew its designation of Dr. Zakowski. On February 3, 2017
Unzueta filed a motion in limine (No. 3) to exclude Dr. Zakowski’s
testimony at trial on the basis Dr. Akopyan had failed to
designate him as her expert witness. Unzueta also argued
Zakowski’s testimony was cumulative of the testimony of
Dr. Akopyan’s designated anesthesiology expert, Dr. Kevin
Becker. Dr. Akopyan opposed the motion, arguing she could
properly rely on the expert designation by codefendant White
Memorial because Unzueta deposed Dr. Zakowski on July 2,
2015. The trial court denied the motion to exclude Dr. Zakowski
without prejudice. 2
2 Although the trial court’s ruling on motion in limine No. 3
is not reflected in the appellate record, Dr. Zakowski was allowed
to testify at trial.
4
During trial, Unzueta filed another motion in limine (No. 4)
seeking to limit the scope of Dr. Zakowski’s testimony by barring
testimony as to the standard of care applicable to Dr. Akopyan.
Unzueta argued that because Dr. Zakowski was designated as
the expert for White Memorial, she deposed him only as to the
standard of care applicable to White Memorial’s nursing staff, not
Dr. Akopyan. Unzueta attached excerpts from her deposition of
Dr. Zakowski in which he stated he would not be testifying on the
standard of care applicable to Dr. Akopyan. Unzueta in her
motion did not seek to preclude Dr. Zakowski’s testimony on
causation. In the excerpts of Dr. Zakowski’s deposition attached
to Unzueta’s motion, counsel for White Memorial stated, “[H]e
does have some opinion as to what caused this injury based on
his background, training, education and experience . . . .”
At a hearing on March 1, 2017 during trial, the court
clarified it had granted motion in limine No. 4, precluding
Dr. Zakowski from testifying about standard of care, but allowing
him to testify about causation.
C. Unzueta’s Offer of Proof Regarding Dr. Akopyan’s Criminal
Record and Medical License Applications
On February 8, 2017 Unzueta filed a written “offer of
proof,” seeking to admit evidence Dr. Akopyan was convicted in
1992 of theft (Pen. Code, § 484, subd. (a)), was arrested but not
convicted in 1999 for the same offense, and had concealed her
criminal record from the Medical Board of California (Medical
Board) in her 1999 application for a medical license and
subsequent renewals. Unzueta sought to introduce testimony
from Dr. Akopyan about these events; testimony from
Dr. Akopyan’s husband, Dr. Manvel Michael Mazmanyan,
regarding his participation in these events and his criminal
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conviction and license suspension; certified court records from
Drs. Akopyan’s and Mazmanyan’s criminal cases; and records
from the Medical Board regarding the licensure of Drs. Akopyan
and Mazmanyan. Dr. Akopyan opposed introduction of the
proposed evidence and requested an opportunity to investigate
Unzueta’s allegations. The trial court ordered the Medical Board
to produce to the court Dr. Akopyan’s medical licensure and
renewal applications.
After a hearing, the trial court excluded all evidence of
Dr. Akopyan’s criminal record and medical license applications.
The trial court found, “[T]here’s no question she failed to disclose
a misdemeanor conviction from 1992. [¶] That is extremely
remote to the point where I think Evidence Code [section] 352’s
factor[s] substantially outweigh its probative value.” The court
noted 15 years had passed since Dr. Akopyan had last failed to
disclose her conviction on her 2002 medical license application.
The court reasoned, “At some point, you know, these
transgressions have got to fade into black.” The trial court also
found Dr. Akopyan had not lied on her medical license renewal
applications because the applications asked only whether
Dr. Akopyan had “been convicted of any felony or any crime in
any state since you last renewed,” which she had not. With
respect to the evidence relating to Dr. Mazmanyan’s conviction,
the court found “the [Evidence Code section] 352 factors with the
husband are just overwhelming.”
D. Testimony at Trial
1. Unzueta’s case
On August 26, 2011 White Memorial admitted Unzueta for
the delivery of her baby. Unzueta testified she was in great pain
when she arrived at the hospital to give birth. Dr. Akopyan
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administered an anesthetic by epidural injection for the pain. A
nurse provided Unzueta with a document to sign providing her
informed consent to the epidural anesthesia, but Dr. Akopyan
injected Unzueta with the epidural before she signed the
document. Dr. Akopyan did not explain the procedure or
examine Unzueta. Unzueta would not have consented had she
been informed the epidural presented a risk of permanent nerve
injury. After the injection, Unzueta immediately began to shake,
so nurses brought her a blanket. The anesthetic did not reduce
Unzueta’s pain, so Dr. Akopyan administered a second epidural
injection.
During the final stage of the delivery, the nurses, the
baby’s father, and the baby’s paternal grandmother held
Unzueta’s legs. Unzueta gave birth to a healthy baby. After the
birth, Unzueta was numb in both of her legs. Her left leg
regained feeling, but her right leg did not. Unzueta never
regained full use of her right foot.
Unzueta presented expert testimony from Drs. Karl Norris,
Hyman Gross, and Sherman Shlomo Elspas that Dr. Akopyan’s
conduct fell below the standard of care and caused Unzueta’s
injury either by the administration of epinephrine in the epidural
injection or by the epidural needle damaging the nerve root
through direct contact. 3
3 Unzueta has not included the testimony of Drs. Norris,
Gross, and Elspas in her designated record on appeal, but the
parties’ closing arguments and the testimony of Dr. Akopyan’s
experts make clear the principal theories Unzueta’s experts
relied on to explain the cause of her injury.
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2. Dr. Akopyan’s case
Dr. Akopyan testified as to her procedure for administering
epidural injections. She acknowledged the first epidural injection
she administered to Unzueta was not effective, but explained,
“It’s a common practice to replace epidurals.” Dr. Akopyan
opined she could not have damaged the nerve responsible for
Unzueta’s injury because the damaged nerve was in Unzueta’s
leg above the knee, whereas the epidural needle was placed in
her back. Dr. Akopyan also testified that damage to the nerve in
the leg was a “very common complication” for a person who gives
birth in the position Unzueta was in.
Dr. Becker, an anesthesiologist, opined Dr. Akopyan’s
treatment of Unzueta met the standard of care and did not cause
Unzueta’s injury. He testified anesthesiologists commonly need
to administer a second epidural when the first proves
unsatisfactory, which is not a sign of medical negligence.
Dr. Becker found from his review of Dr. Akopyan’s records that
she recorded inaccurate blood pressure readings, but the errors
did not contribute to Unzueta’s injury. He opined the epidural
injection administered to Unzueta’s back was too far from the
damaged nerve in Unzueta’s leg to have caused the injury.
Further, there was no evidence Dr. Akopyan struck a nerve
during the administration of either epidural injection.
Dr. Zakowski, an obstetric anesthesiologist, opined it was
reasonably medically probable Unzueta’s injury was caused by
the force of labor or external compression by the positioning of
her legs during the labor and delivery. Further, there was “zero”
probability Unzueta’s injury was caused by epinephrine
contained in a test dose for the epidural placement, and there
was “no way physically” for an epidural needle in the lower part
of Unzueta’s back directly to strike the nerve root located above
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the knee to cause Unzueta’s injury. Dr. Zakowski opined it was
not reasonably medically probable Unzueta’s injury was caused
by the epidural injections.
E. Closing Arguments
During closing arguments, Dr. Akopyan’s attorney, Robert
Packer, argued Unzueta had failed to prove Dr. Akopyan’s care
caused Unzueta’s injury, arguing it “was the result of a rare but
well-described phenomenon of nerve compression, both external
and internal, from forces of labor.”
Packer continued, “Now, we discussed at length, I believe
during our jury selection, opening statements, that in California
and the United States, our system of what we call civil justice, as
opposed to criminal justice, we don’t impose liability. We don’t
take Dr. Akopyan’s purse and give it to Ms. Unzueta . . . .” As he
spoke, Packer motioned with his hands as if to move an object
from one place to another. Unzueta’s attorney, Yana Henriks,
made an objection, which the court overruled. Packer continued,
“without a proof of fault. We are a fault-based system.” Packer
went on, “In a civil case for money damages, based upon
negligence, professional or otherwise, the plaintiff has to prove
that the defendant was at fault, just as a plaintiff who might sue
you or you might sue somebody some day in the future has that
burden of proof.”
With respect to economic damages, Packer argued,
“[T]here’s no evidence of income loss in this—in the past or
reasonably certain to occur in the future.” Packer asserted
Unzueta’s injury did not prevent her from being employed, but
“[i]nstead she would like to be supported the rest of her life by
Dr. Akopyan at an enormous amount of money. I think the figure
was $875,000.” Henriks did not object. Packer continued, “From
9
the time of her birth of her baby until today she’s been a Medi-
Cal recipient . . . . Medi-Cal has paid over . . . [s]ix years,
$1200 . . . .” At this point, Henriks made an objection, which the
trial court overruled.
F. Verdict
The jury returned a special verdict for Dr. Akopyan, finding
Dr. Akopyan was “negligent in the care and treatment” of
Unzueta, but Dr. Akopyan’s negligence was not “a substantial
factor in causing harm” to Unzueta.
On April 13, 2017 the trial court entered judgment in favor
of Dr. Akopyan.
G. Unzueta’s Motion for New Trial
Unzueta moved for a new trial based on the trial court’s
exclusion of evidence of Dr. Akopyan’s conviction and
misrepresentations to the Medical Board; denial of Unzueta’s
motion to exclude the testimony of Dr. Zakowski; and Packer’s
asserted misconduct during closing arguments by referencing
Dr. Akopyan’s “purse” and stating Unzueta wanted Dr. Akopyan
to support her for “the rest of her life.” Unzueta also raised
issues related to Batson/Wheeler, discussed below. After a
hearing, the trial court denied the motion. Unzueta timely
appealed.
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DISCUSSION
A. The Trial Court Erred by Failing To Require Defense
Counsel To Justify Excusal of the First Four Hispanic
Prospective Jurors
1. The challenged jurors
Jury selection began on February 6, 2017. The next day
Dr. Akopyan’s attorney, Packer, exercised four peremptory
challenges to excuse prospective jurors R. Medina, J. Quintero,
G. Henriquez, and R. Villarreal.
Medina was a civil engineering student, unmarried,
without children, with no prior jury experience. She had
“indifferent” medical experiences and no experience with
childbirth or epidural treatment for pain.
Quintero was a sanitation worker for the City of Los
Angeles, was married with four adult children, and was raising
one grandchild. He had served on four criminal and one civil
juries, all of which reached verdicts. One of his children did not
work because of a disability.
Henriquez was a child specialist, married, with no prior
jury experience. Her husband was disabled and did not work.
Henriquez had a pending workers’ compensation case for an
injury sustained in a workplace fall. She stated she would be
able to distinguish between the standard of negligence at issue in
Unzueta’s case and the no-fault standard for workers’
compensation.
Villareal was a children’s social worker who supervised
investigative teams responding to reports of child abuse. She had
two adult children and no prior jury experience. As a supervisor,
Villareal was responsible for deciding based on the social
workers’ investigations whether to file a petition in juvenile court
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regarding the child. Villareal had been criticized for decisions
she made but strived to act in the best interests of the children.
Unzueta exercised all six of her peremptory challenges;
Dr. Akopyan accepted the panel without exercising her final two
peremptory challenges. On February 7, 2017 the jury panel was
sworn.
On February 8 voir dire continued for the selection of the
alternate jurors. Packer exercised three peremptory challenges
to excuse prospective jurors D. Winfrey, 4 D. Zaldana, and
A. Marquez.
Zaldana was a broadcast engineer, married, with three
adult children. He had experience on one civil jury, which
reached a verdict. A relative of Zaldana received heart surgery at
one of the hospital’s other locations, but “had items left in him” as
a result of the surgery. Zaldana explained, “I have a doubt about
medical practices,” but promised to “be as objective as I can be.”
Zaldana’s father had developed symptoms of Parkinson’s disease
about two months after having an angiogram performed.
Zaldana questioned whether the symptoms were brought on by
the angiogram test. Zaldana believed medical complications
could “arise in any circumstances” without “necessarily [being]
the doctor’s fault,” although it may be “the doctor’s
responsibility.”
Marquez was single and a sales associate at a hardware
store, with no prior jury experience. He had previously broken an
ankle, which was a painful injury and disrupted his daily living
4 Unzueta does not contend Winfrey was Hispanic, and
therefore we do not discuss her responses or Packer’s reasons for
excusing her.
12
for three or four months. After the injury, Marquez “sat at
home.”
After Packer exercised peremptory challenges to excuse
Winfrey, Zaldana, and Marquez, the trial court requested all
jurors and prospective alternate jurors leave the courtroom so the
court could speak with the attorneys.
2. The trial court’s Batson/Wheeler motion and ruling
Outside of the presence of the jury, the trial court stated,
“Mr. Packer, the only peremptories you exercised yesterday were
against Hispanic jurors. Today you have exercised peremptories
against two Hispanic jurors. [¶] I find a prima facie case that
you have violated the Wheeler/Batson rulings, and you are going
to have to justify your peremptories right now.” The court
continued, “I’m surprised the plaintiffs haven’t made a
Wheeler/Batson challenge, but I would have from what I’ve seen.”
Packer responded as to Marquez, “[T]his is what’s in my
notes.” The trial court noted, “For the record, it looks like just
about five lines. [¶] . . . [¶] . . . With just a couple of words on
each line . . . .” Packer described his reasons for challenging
Marquez: “He’s single. He has no jury experience. I didn’t know
anything about him. Either I didn’t get to him closely enough or
the plaintiff didn’t ask any questions, but he appeared to me to be
disinterested in the case. He didn’t volunteer anything during
the course of questioning of the other jurors, many of whom had a
lot of things to say about medicine and about chronic pain, about
the things I asked about, the facts that we talked about. I felt
that he, at this point, was completely unknown to me compared
to the other jurors. That’s why I excused him.”
The trial court responded, “Very well.” Unzueta’s attorney,
Henriks, interjected, “Your Honor, we did notice yesterday that
13
some very good jurors that . . . could have been very fair were
challenged.” The court responded, “You didn’t make the motion.”
Henriks explained, “We’re very desperate to get our expert and
get the panel—and who has a medical condition. So out of that
desperation. But we did notice. We didn’t think it proper . . . .”
Henriks added that “all of [the defense’s] challenges” from the
previous day were used to excuse jurors “because they’re
Hispanic” and “[t]here was nothing wrong with them.” The court
responded, “Well, that water is under the bridge. I’m not going to
ask counsel to justify yesterday’s peremptories. That is past.”
Packer reminded the court the panel as constituted
included at least three Hispanic jurors. The court responded that
“[o]ne juror improperly challenged justifies the Wheeler/Batson
motion.” However, the court reiterated, “That’s yesterday’s news.
I’m not dealing with it now. Plaintiff, for whatever reason, failed
to raise it. But today, based on what happened yesterday and
today, that’s why I raised it on my own motion.”
The trial court did not ask Packer to explain his use of a
peremptory strike to excuse Zaldana, and Packer did not provide
an explanation. The court denied the Batson/Wheeler motion,
finding Packer had justified his use of peremptory challenges as
to the alternates.
3. Unzueta’s motion for new trial
On June 5, 2017 Unzueta moved for a new trial, arguing,
among other things, the trial court failed to require Packer to
justify the four peremptory challenges he exercised as to the
Hispanic jurors on February 7. Unzueta also asserted the court
erred by failing to elicit an explanation from Packer for his
removal of Zaldana on February 8.
14
At the hearing on the motion, Henriks explained she had
not made a Batson/Wheeler motion on February 7 because she
“wanted to see if [defense counsel was] going to continue the
pattern . . . .” Packer stated he challenged Zaldana because of
the “history of his father’s surgery which he felt was the cause of
his father developing Parkinson’s disease.” Packer explained he
was concerned Zaldana “believe[d] that anytime there is an
adverse outcome that somebody must have done something
wrong.” The trial court acknowledged it “didn’t question [Packer]
thoroughly enough regarding the challenges.” The trial court
“urge[d] the Court of Appeal to look at this very closely and
possibly the Supreme Court, if it gets that far, because this is—I
just feel very, very conflicted about what happened.” The court
took the motion under submission.
As reflected in its July 10, 2017 minute order, the trial
court denied Unzueta’s motion for a new trial. With respect to
Dr. Akopyan’s late-proffered explanation for striking Zaldana,
the court reasoned, “[I]f a post-trial evaluation is permissible on
remand following an appeal, it should be permissible at a hearing
on a motion for a new trial, which occurs much more closely in
time to the complained-of event.” The court explained, “[I]n light
of the hearing on [Unzueta’s] new trial motion, the court is
satisfied that no Wheeler/Batson violation occurred. During the
hearing which this court initiated, [d]efense counsel pointed to
several portions of the reporter’s transcript as reasons for
exercising a peremptory challenge against [Z]aldana. The [c]ourt
is more than satisfied that those reasons are not pretextual.”
With respect to prospective jurors Medina, Quintero, Henriquez,
and Villareal, the trial court found Unzueta had not made “a
motion at any time,” and “[t]he language on which [Unzueta]
relies in the transcript does not rise to the level of a motion.” The
15
court continued, “While the delay itself does not defeat the
motion, it supports the notion that plaintiff did not actually make
a motion at the time she claims she did. This is regrettable. It
appears that the court struck those four Hispanic jurors without
questioning them. Had [Unzueta] made a proper motion, the
court might have ordered defense counsel to justify his strikes
and possibly have granted this motion.” The court concluded,
“Even though the [c]ourt is denying this [m]otion for a [n]ew
[t]rial, the facts are troubling. We are in need of appellate
guidance.”
4. Applicable law
Unzueta, who is Hispanic, 5 contends Dr. Akopyan’s
exercise of six of her seven peremptory challenges to excuse
Hispanic prospective jurors was based on race and deprived
Unzueta of her federal constitutional right to equal protection
(Batson, supra, 476 U.S. at p. 88) and state constitutional right to
a trial by a jury drawn from a representative cross-section of the
community (Wheeler, supra, 22 Cal.3d at pp. 276-277).
Specifically, Unzueta argues the trial court erred in failing to
evaluate whether Dr. Akopyan exercised her peremptory
challenges as to the first four Hispanic prospective jurors based
on their race.
“‘[A] party may exercise a peremptory challenge for any
permissible reason or no reason at all’ [citation] but ‘exercising
5 Dr. Akopyan does not dispute Unzueta and the six
prospective jurors are Hispanic. (See People v. Gutierrez (2017)
2 Cal.5th 1150, 1156, fn. 2 [“We have held that Spanish
surnames may identify Hispanic individuals, who are members of
a cognizable class for purposes of Batson/Wheeler motions.”].)
16
peremptory challenges solely on the basis of race offends the
Fourteenth Amendment’s guaranty of the equal protection of the
laws’ [citations]. Such conduct also ‘violates the right to trial by a
jury drawn from a representative cross-section of the community
under article 1, section 16, of the California Constitution.’”
(People v. Smith (2018) 4 Cal.5th 1134, 1146 (Smith); accord,
People v. Armstrong (2019) 6 Cal.5th 735, 765 (Armstrong)
[“Peremptory challenges are ‘designed to be used “for any reason,
or no reason at all.”’ [Citations.] But there are limits:
Peremptory challenges may not be used to exclude prospective
jurors based on group membership such as race or gender.”];
People v. Winbush (2017) 2 Cal.5th 402, 433 (Winbush) [“Both
state and federal Constitutions prohibit the use of peremptory
challenges to remove prospective jurors based on their race or
membership in a cognizable group.”].) “‘The “Constitution forbids
striking even a single prospective juror for a discriminatory
purpose.”’” (People v. Hardy (2018) 5 Cal.5th 56, 76 (Hardy);
accord, People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez)
[“Exclusion of even one prospective juror for reasons
impermissible under Batson and Wheeler constitutes structural
error, requiring reversal.”].)
The prohibition against the exercise of peremptory
challenges to exclude prospective jurors on the basis of race or
other group bias applies to civil as well as criminal cases. (Di
Donato v. Santini (1991) 232 Cal. App. 3d 721, 731 [“a party to a
civil lawsuit may not use peremptory challenges to exclude
women from the jury panel on the basis of their gender”]; accord,
Holley v. J & S Sweeping Co. (1983) 143 Cal. App. 3d 588, 592
[concluding as to Batson/Wheeler motion, “[w]e are persuaded
that substantially similar constitutional concerns compel a
uniform application to civil jury trials”].)
17
A three-step procedure governs the analysis of
Batson/Wheeler challenges. (Smith, supra, 4 Cal.5th at p. 1147;
Armstrong, supra, 6 Cal.5th at p. 766; Winbush, supra, 2 Cal.5th
at p. 433.) “‘First, the defendant must make a prima facie
showing that the prosecution exercised a challenge based on
impermissible criteria,’” such as race. (Smith, at p. 1147; accord,
Hardy, supra, 5 Cal.5th at p. 75; Winbush, at p. 433.) “[A]
defendant satisfies the requirements of Batson’s first step by
producing evidence sufficient to permit the trial judge to draw an
inference that discrimination has occurred.” (Johnson v.
California (2005) 545 U.S. 162, 170; accord, People v. Reed (2018)
4 Cal.5th 989, 999.) “[A] ‘pattern of systematic exclusion’ of a
particular cognizable group from the venire raises an inference of
purposeful discrimination . . . .” (People v. Avila (2006)
38 Cal. 4th 491, 549 (Avila); accord, Batson, supra, 476 U.S. at
p. 94 [“Proof of systematic exclusion from the venire raises an
inference of purposeful discrimination because the ‘result
bespeaks discrimination.’”].)
“‘Second, if the trial court finds a prima facie case, then the
prosecution must offer nondiscriminatory reasons for the
challenge.’” (Smith, supra, 4 Cal.5th at p. 1147; Winbush, supra,
2 Cal.5th at p. 433 [“‘[I]f the showing is made, the burden shifts
to the prosecutor to demonstrate that the challenges were
exercised for a race-neutral reason.’”].) “[T]he prosecutor ‘must
provide a “‘clear and reasonably specific’ explanation of his [or
her] ‘legitimate reasons’ for exercising the challenges.”
[Citation.] “The justification need not support a challenge for
cause, and even a ‘trivial’ reason, if genuine and neutral, will
suffice.” [Citation.] A prospective juror may be excused based
upon facial expressions, gestures, hunches, and even for arbitrary
or idiosyncratic reasons.’” (Winbush, at p. 434; accord, Hardy,
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supra, 5 Cal.5th at p. 76.) “‘Third, the trial court must determine
whether the prosecution’s offered justification is credible and
whether, in light of all relevant circumstances, the defendant has
shown purposeful race discrimination.’” (Smith, at p. 1147;
accord, Hardy, at p. 75; Gutierrez, supra, 2 Cal.5th at p. 1158 [“In
order to prevail, the movant must show it was ‘“more likely than
not that the challenge was improperly motivated.”’”].) “‘“The
ultimate burden of persuasion regarding [discriminatory]
motivation rests with, and never shifts from, the [moving
party].”’” (Smith, at p. 1147; accord, Winbush, at p. 433.)
We independently review the legal question whether the
trial court was required to elicit justifications for the first four
jurors Packer excused. (People v. Parker (2017) 2 Cal.5th 1184,
1211 [“‘[W]e review the record independently to “apply the high
court’s standard and resolve the legal question whether the
record supports an inference that the prosecutor excused a juror”
on a prohibited discriminatory basis.’”]; People v. Harris (2013)
57 Cal. 4th 804, 834 [“Regardless of which standard the trial court
used, we independently review the record and apply the standard
required by the high court.”]; People v. Edwards (2013) 57 Cal. 4th
658, 698 [“[W]e independently review the record and determine
whether it ‘supports an inference that the prosecutor excused a
juror on the basis of race.’”].)
5. Unzueta did not forfeit her Batson/Wheeler argument
Dr. Akopyan contends Unzueta forfeited her
Batson/Wheeler argument by failing timely to raise an objection
to the first four peremptory challenges, and, when she did object,
by failing to identify the four jurors, make a prima facie showing,
and request the jury panel be discharged. Unzueta argues she
joined in the trial court’s sua sponte motion by asserting
19
Dr. Akopyan’s challenges to the first four prospective jurors were
motivated by improper racial bias. Unzueta has the better
argument.
As the trial court observed, six of the seven peremptory
challenges Packer made were to Hispanic prospective jurors. The
court specifically identified all six jurors in finding a prima facie
case of discrimination, stating, “[T]he only peremptories [Packer]
exercised yesterday were against Hispanic jurors. Today you
have exercised peremptories against two Hispanic jurors.”
Henriks’s response—that “yesterday . . . some very good jurors
that . . . could have been very fair were challenged,” and “all of
[the defense’s] challenges” were made “because they’re
Hispanic”—sufficiently identified the challenges she contended
were discriminatory (those made “yesterday”), as well as the
alleged discriminatory intent (challenges made “because they’re
Hispanic”).
Although Henriks’s articulation of Unzueta’s
Batson/Wheeler challenge was not a model of clarity, in contrast
to the authorities cited by Dr. Akopyan, Henriks’s colloquy with
the trial court left no ambiguity as to which peremptory
challenges she identified as racially discriminatory and on what
basis. (Cf. People v. Cunningham (2015) 61 Cal. 4th 609, 662
[defendant’s objection “‘Batson again’” was not sufficient to raise
Batson/Wheeler challenge where record did not reflect “what
cognizable class defendant was asserting as the basis” for his
motion]; People v. Booker (2011) 51 Cal. 4th 141, 161-167
[defendant who objected to excusal of four Black prospective
jurors under Batson/Wheeler on grounds of racial discrimination
forfeited argument dismissals were due to impermissible
religious discrimination]; People v. Lewis (2008) 43 Cal. 4th 415,
481 [defendant who challenged excusal of five Black prospective
20
jurors did not sufficiently raise challenge as to Hispanic
prospective jurors by identifying one Hispanic juror as being “‘the
last Spanish that [the prosecutor] kicked out’”], overruled on
another ground by People v. Black (2014) 58 Cal. 4th 912, 920;
People v. Thornton (2007) 41 Cal. 4th 391, 461-462 [defendant
forfeited Batson/Wheeler challenge to seating of male alternate
juror during trial where defendant failed to object to random
selection of alternate juror instead of seating sole female
alternate juror].) Because Unzueta sufficiently joined in the trial
court’s motion, she did not forfeit her argument the trial court’s
Batson/Wheeler analysis was incomplete. 6
Further, “neither forfeiture nor application of the forfeiture
rule is automatic.” (People v. McCullough (2013) 56 Cal. 4th 589,
593 [finding defendant forfeited challenge to imposition of
booking fee because failure to raise his ability to pay the fee in
the trial court did not raise purely legal issues]; accord, In re S.B.
(2004) 32 Cal. 4th 1287, 1293 [“application of the forfeiture rule is
not automatic,” although “the appellate court’s discretion to
excuse forfeiture should be exercised rarely and only in cases
presenting an important legal issue”].) As the Supreme Court
explained in S.B., the purpose of the forfeiture rule “is to
encourage parties to bring errors to the attention of the trial
court, so that they may be corrected.” (S.B., at p. 1293.) Here,
Unzueta identified the peremptory challenges against the first
four Hispanic prospective jurors as racially discriminatory, and
the trial court addressed Unzueta’s contention by finding her
objection was untimely, describing the challenges as “water . . .
6 Dr. Akopyan cites no authority, nor is there any, for her
contention a moving party must specifically request the jury
panel be discharged.
21
under the bridge.” Therefore, the purpose of the forfeiture rule is
satisfied, and we decline to find Unzueta forfeited her argument
as to the exclusion of prospective jurors Medina, Quintero,
Henriquez, and Villareal.
6. The trial court’s Batson/Wheeler motion during
selection of the alternate jurors was timely as to
prospective jurors excused during selection of the jury
panel
Dr. Akopyan alternatively argues any attempt by Unzueta
to join the trial court’s motion was untimely as to the peremptory
challenges exercised the prior day because Unzueta did not raise
her objection “at the earliest opportunity during the voir dire
process.” Unzueta contends her objection was timely because
Packer’s pattern of systematic exclusion of Hispanic jurors was
not fully manifested on February 7. We agree with Unzueta.
“A Batson/Wheeler motion is timely if it is made before jury
impanelment is completed, which does not occur ‘“until the
alternates are selected and sworn.”’” (People v. Scott (2015)
61 Cal. 4th 363, 383; accord, People v. McDermott (2002)
28 Cal. 4th 946, 970 [“[T]he defense motion was timely because it
was made before the alternate jurors were selected and sworn.”].)
As the Supreme Court has recognized, “discriminatory motive
may become sufficiently apparent to establish a prima facie case
only during the selection of alternate jurors, and a motion
promptly made before the alternates are sworn, and before any
remaining unselected prospective jurors are dismissed, is timely
not only as to the prospective jurors challenged during the
selection of the alternate jurors but also as to those dismissed
during selection of the 12 jurors already sworn.” (McDermott, at
p. 969; see People v. Gore (1993) 18 Cal. App. 4th 692, 705 [“[T]he
22
trial court should have considered the motion as to all seven
challenged Hispanic prospective jurors and not limited its inquiry
to only the alternate juror selection process. To hold otherwise
would be to allow a potential prima facie pattern of systematic
exclusion to go unchallenged.”].) 7
While there may have been sufficient evidence to support a
prima facie finding of group bias by the time Packer excused the
fourth Hispanic juror on February 7, the showing of
discriminatory bias was strengthened by Packer’s request to
excuse two additional Hispanic prospective jurors the following
day. The trial court’s motion, raised during the selection of
alternate jurors and joined by Unzueta, was timely as to the
prospective jurors Packer excused from the panel the day before.
7. The trial court erred by failing to question defense
counsel regarding his peremptory challenges to the
first four Hispanic prospective jurors
Dr. Akopyan argues the four Hispanic prospective jurors
challenged on February 7 were not within the scope of the court’s
sua sponte motion, so the trial court did not err by failing to elicit
explanations for why they were excused. But the trial court’s
motion identified both the four Hispanic prospective jurors who
were excused on February 7 and the two who were excused on
February 8. The court added its motion was “based on what
happened yesterday and today.”
Contrary to Dr. Akopyan’s assertion, the Supreme Court’s
holding in Avila, supra, 38 Cal. 4th 491, which addressed the
7 People v. Ortega (1984) 156 Cal. App. 3d 63, relied on by
Dr. Akopyan, predates the Supreme Court’s resolution of this
issue in People v. McDermott, supra, 28 Cal.4th at page 969.
23
scope of the trial court’s mandatory review on successive
Batson/Wheeler motions, supports Unzueta’s position. There, the
defendant objected to the excusal of the first Black prospective
juror, but the trial court found the defendant failed to establish a
prima facie case of group bias. (Id. at pp. 541-542.) When the
defendant objected to the excusal of a second Black prospective
juror, the trial court found the two excusals constituted a prima
facie showing under Batson/Wheeler, and it elicited the
prosecutor’s explanation for excusing the second Black
prospective juror, but not the first. (Id. at p. 542.)
On appeal, the defendant argued the trial court erred in
failing to require the prosecutor to state his reasons for excusing
the first Black prospective juror after it found a prima facie case
based on excusal of the second prospective Black juror. (Avila,
supra, 38 Cal.4th at p. 548.) The Supreme Court rejected this
contention, explaining the trial court had “no sua sponte duty to
revisit earlier Batson/Wheeler challenges that it had previously
denied,” although it had discretion to do so upon request when a
subsequent challenge “casts the prosecutor’s earlier challenges of
the jurors of that same protected class in a new light, such that it
gives rise to a prima facie showing of group bias as to those
earlier jurors.” (Id. at p. 552; accord, Armstrong, supra, 6 Cal.5th
at p. 767 [“Trial courts are no longer obligated to revisit their
rulings on earlier Wheeler/Batson motions when they conclude
the defendant has made out a prima facie case in connection with
a later motion.”].) The Avila court concluded, “[I]f a trial court
finds a prima facie showing of group bias at a later point in voir
dire, the court need only ask the prosecutor to explain ‘each
suspect excusal.’ [Citation.] Each suspect excusal includes the
excusals to which the [moving party] is objecting and which the
court has not yet reviewed.” (Avila, at p. 551.)
24
Here, Unzueta had not previously challenged the four
Hispanic prospective jurors excused on February 7. Thus,
because the trial court identified the basis of its sua sponte
Batson/Wheeler motion as the excusal of all six prospective
jurors—not just the two excused on February 8—all six jurors
were “suspect excusal[s] . . . which the court ha[d] not yet
reviewed.” (Avila, supra, 38 Cal.4th at p. 551.) Further, as
discussed, at the time of the court’s sua sponte motion, Henriks
specifically raised a concern about Packer’s challenges to the first
four Hispanic prospective jurors. The fact the challenges were
made on separate days is immaterial, as is the fact the challenges
were made to both the jury panel and the alternates. (People v.
Scott, supra, 61 Cal.4th at p. 383; People v. McDermott,
supra, 28 Cal.4th at p. 969.) Once the trial court found a prima
facie showing of group bias, the court was required to elicit from
Packer justifications for each of the six challenges forming the
basis for the prima facie showing.
8. Conditional reversal and limited remand are
appropriate
Unzueta contends we should remand for a new trial
because given the passage of time Dr. Akopyan’s attorney will not
be able to recall the reasons for excusing the prospective jurors or
the appearance and demeanor of the jurors, and the trial court
will not have sufficient information on which to conduct a
complete Batson/Wheeler inquiry. But it is for the trial court to
determine in the first instance whether it can conduct a complete
Batson/Wheeler analysis.
The Supreme Court’s decision in People v. Johnson (2006)
38 Cal. 4th 1096 (Johnson) is directly on point. There, after the
United States Supreme Court held the trial court erred in finding
25
there was no prima facie case of discrimination, the California
Supreme Court on remand considered the appropriate remedy for
the constitutional violation. (Id. at p. 1099.) The California
Supreme Court concluded although jury selection had taken place
over seven years earlier, the court and parties could rely on the
jury questionnaires and a transcript of the jury selection
proceedings, and therefore a limited remand was appropriate for
the trial court to conduct the second and third steps of the
Batson/Wheeler analysis. (Id. at pp. 1103-1104; accord, People v.
Scott, supra, 61 Cal.4th at p. 388 [“[W]hen a trial court
erroneously fails to discern an inference of discrimination and
terminates the inquiry at that point, an appellate court is
generally required to order a remand to allow the parties and the
trial court to continue the three-step Batson/Wheeler inquiry.”].)
In this case, although jury selection took place almost three
years ago, as in Johnson, there is a transcript of the jury
selection proceeding that will assist the trial court and parties in
conducting a further Batson/Wheeler analysis. In addition, the
parties’ attorneys may still have their notes from the trial, which
Packer referenced during his discussion of the reasons he
challenged Marquez. On remand the trial court should require
defense counsel to provide Packer’s reasons for challenging the
first four prospective jurors (Medina, Quintero, Henriquez, and
Villarreal), 8 evaluate the explanations, “and decide whether
8 Because remand is necessary for the trial court to conduct a
complete Batson/Wheeler analysis as to prospective jurors
Medina, Quintero, Henriquez, and Villarreal, we do not reach
Unzueta’s argument the trial court failed to conduct a sufficient
third-step analysis of Packer’s reasons for excusing Zaldana and
Marquez. As part of the third step of the analysis, the trial court
will need to make a sincere and reasoned evaluation of Packer’s
26
[Unzueta] has proved purposeful racial discrimination. If the
court finds that, due to the passage of time or any other reason, it
cannot adequately address the issues at this stage or make a
reliable determination, or if it determines that [defense counsel]
exercised his peremptory challenges improperly, it should set the
case for a new trial. If it finds [defense counsel] exercised his
peremptory challenges in a permissible fashion, it should
reinstate the judgment.” (Johnson, supra, 38 Cal.4th at pp. 1103-
1104.)
B. The Trial Court Did Not Err in Allowing Dr. Zakowski To
Testify as an Expert Witness
Unzueta contends the trial court erred by allowing
Dr. Zakowski to testify even though Dr. Akopyan did not
designate him as an expert witness prior to trial pursuant to
Code of Civil Procedure section 2034.300.9 Dr. Akopyan responds
justifications as to all six jurors. (Gutierrez, supra, 2 Cal.5th at
p. 1159.) In addition, as argued by Unzueta, a comparative juror
analysis may be appropriate, which “would ask whether the
prosecutor’s justification for striking one Hispanic individual
applies just as well to an otherwise similarly situated non-
Hispanic individual who is permitted to serve on the jury. [A]
comparative analysis may be probative of purposeful
discrimination at Batson’s third stage.” (Id. at p. 1173; accord,
Winbush, supra, 2 Cal.5th at p. 442 [“‘The rationale for
comparative juror analysis is that a side-by-side comparison of a
prospective juror struck by the prosecutor with a prospective
juror accepted by the prosecutor may provide relevant
circumstantial evidence of purposeful discrimination by the
prosecutor.’”].)
9 Code of Civil Procedure section 2034.300 provides in part,
“[T]he trial court shall exclude from evidence the expert opinion
27
that because White Memorial designated Dr. Zakowski as an
expert and Unzueta deposed him, Dr. Akopyan could call him as
an expert witness pursuant to Code of Civil Procedure section
2034.310. Dr. Akopyan is correct.
Generally, upon a proper objection, “the trial court ‘shall
exclude from evidence the expert opinion of any witness that is
offered by any party who has unreasonably failed,’ inter alia, to
designate that expert in its expert witness list.” (Pina v. County
of Los Angeles (2019) 38 Cal.App.5th 531, 546; accord, Tesoro del
Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal. App. 4th
619, 641 [“The general rule, set forth in Code of Civil Procedure
section 2034.300, is that an undesignated expert witness may not
testify.”].) However, Code of Civil Procedure section 2034.310
provides an exception to the general rule, stating “[a] party may
call as a witness at trial an expert not previously designated by
that party if . . . [¶] (a) [t]hat expert has been designated by
another party and has thereafter been deposed . . . .”
Dr. Zakowski was designated by White Memorial and was
later deposed by Unzueta. Without citation to the record,
Unzueta asserts Dr. Akopyan “elicited expert opinions from [Dr.]
Zakowski on subjects not disclosed during his deposition.” But
Dr. Zakowski testified at trial only as to the cause of Unzueta’s
injury, a subject on which White Memorial expressly designated
Dr. Zakowski as an expert. Moreover, White Memorial’s attorney
of any witness that is offered by any party who has unreasonably
failed to do any of the following: [¶] (a) List that witness as an
expert under Section 2034.260. [¶] (b) Submit an expert witness
declaration. [¶] (c) Produce reports and writings of expert
witnesses under Section 2034.270. [¶] (d) Make that expert
available for a deposition under Article 3 (commencing with
Section 2034.410).”
28
stated at the deposition Dr. Zakowski would opine “as to what
caused this injury based on his background, training, education
and experience.” 10 Under these circumstances, the trial court did
not err in denying Unzueta’s motion.
C. The Trial Court’s Exclusion of Dr. Akopyan’s Criminal
Record and Medical License Applications Was Harmless
Unzueta contends the trial court erred by excluding
evidence of Dr. Akopyan’s 1992 conviction for theft and her
applications and renewals to the Medical Board for her medical
license, which Unzueta argued showed Dr. Akopyan failed to
report her 1992 theft conviction to the Medical Board. 11 The trial
court ruled that under Evidence Code section 352 the evidence
10 The record on appeal contains only a three-page excerpt
from Dr. Zakowski’s deposition, which addresses whether
Dr. Zakowski would testify at trial as an expert on the standard
of care applicable to Dr. Akopyan. Unzueta did not include any
portion of Dr. Zakowski’s deposition testimony that shows she
lacked the opportunity to question Dr. Zakowski on his opinions
as to causation.
11 Unzueta also sought to introduce evidence of
Dr. Mazmanyan’s criminal record, medical license applications,
and related proceeding before the Medical Board. The trial court
did not abuse its discretion in excluding that evidence. The past
dishonesty of Dr. Akopyan’s husband does not bear on
Dr. Akopyan’s credibility as a witness, nor was evidence of the
Medical Board’s action in response to Dr. Mazmanyan’s
disclosure admissible to show the action it might have taken if
Dr. Akopyan had disclosed her prior theft conviction. (See Evid.
Code, § 350 [“No evidence is admissible except relevant
evidence.”]; Coyne v. De Leo (2018) 26 Cal.App.5th 801, 813
[“Only relevant evidence is admissible.”].)
29
was unduly prejudicial because of the length of time that had
passed since Dr. Akopyan made a misrepresentation to the
Medical Board. We review the trial court’s evidentiary ruling for
an abuse of discretion. (People v. Trujeque (2015) 61 Cal. 4th 227,
278; People v. Doolin (2009) 45 Cal. 4th 390, 437.)
“The law provides that any criminal act or other
misconduct involving moral turpitude suggests a willingness to
lie and is not necessarily irrelevant or inadmissible for
impeachment purposes. [Citations.] However, to the extent such
misconduct amounts to a misdemeanor or is not criminal in
nature, it carries less weight in proving lax moral character and
dishonesty than does either an act or conviction involving a
felony. [Citations.] Hence, trial courts have broad discretion to
exclude impeachment evidence other than felony convictions
where such evidence might involve undue time, confusion, or
prejudice.” (People v. Contreras (2013) 58 Cal. 4th 123, 157,
fn. 24; accord, People v. Doolin, supra, 45 Cal.4th at p. 443
[Under Evidence Code section 352, “‘courts may and should
consider with particular care whether the admission of [evidence
of misdemeanor conduct] might involve undue time, confusion, or
prejudice which outweighs its probative value.’”].) Thus, the trial
court did not abuse its discretion in excluding evidence of
Dr. Akopyan’s prior conviction for the purpose of impeaching her
credibility as a witness.
However, it is a closer call whether Dr. Akopyan’s
deception in the procurement of her medical license, even over a
decade earlier, should have been admitted to impeach her
credibility and competence to provide a medical opinion at trial. 12
12 Although the trial court correctly pointed out Dr. Akopyan
had not lied on her renewal applications because the applications
30
However, even if the trial court erred in excluding the evidence,
Unzueta has the burden on appeal to demonstrate she was
prejudiced by the error, “and that a different result would have
been probable if such error . . . had not occurred or existed.”
(Code Civ. Proc., § 475; see D.Z. v. Los Angeles Unified School
Dist. (2019) 35 Cal.App.5th 210, 231 [“[A]n erroneous evidentiary
ruling requires reversal only if ‘“there is a reasonable probability
that a result more favorable to the appealing party would have
been reached in the absence of the error.”’”]; Linton v. DeSoto Cab
Co., Inc. (2017) 15 Cal.App.5th 1208, 1224 [“Plaintiff has the
burden of affirmatively demonstrating prejudice, that is, that the
errors have resulted in a miscarriage of justice.”]; Sabato v.
Brooks (2015) 242 Cal. App. 4th 715, 724-725 [“‘Reversal is
justified “only when the court, ‘after an examination of the entire
cause, including the evidence,’ is of the ‘opinion’ that it is
reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.”’”].)
It is not reasonably probable the jury would have returned
a verdict for Unzueta on the issue of causation if the
impeachment evidence had been admitted. Despite
Dr. Akopyan’s testimony her conduct met the standard of care,
the jury found her not credible, concluding she provided negligent
care. Further, the proposed impeachment evidence would not
have negated the expert testimony of Drs. Becker and Zakowski
that it was not reasonably medically probable Dr. Akopyan’s
conduct caused Unzueta’s injury. Both doctors testified the site
only asked whether she had “been convicted of any felony or any
crime in any state since [she] last renewed,” by not disclosing the
prior conviction on her renewal applications Dr. Akopyan
continued to conceal her conviction from the Medical Board.
31
of the epidural injection administered to Unzueta’s back was too
far from the damaged nerve in Unzueta’s leg to have caused the
injury. Rather, Dr. Zakowski testified it was reasonably
medically probable Unzueta’s injury was caused by the force of
labor or external compression by the positioning of her legs
during the labor and delivery. 13
D. Defense Counsel’s Statements During Closing Argument Do
Not Require Reversal
Unzueta argues Packer falsely suggested during his closing
argument Dr. Akopyan was not insured, and Packer improperly
appealed to the jury’s sympathies based on the hardship
Dr. Akopyan would suffer from a verdict for Unzueta. We
conclude Packer’s statement and gesture regarding “tak[ing]
Dr. Akopyan’s purse and giv[ing] it to Ms. Unzueta” was not
improper, and Unzueta forfeited her argument as to Packer’s
statement Unzueta “would like to be supported the rest of her life
by Dr. Akopyan” by failing timely to object and request a curative
instruction.
13 We deny Unzueta’s January 3, 2019 request for judicial
notice of the Medical Board’s accusation that Dr. Akopyan
engaged in unprofessional conduct and procured her medical
license by fraud, deceit, or misrepresentation, because the
document is not relevant to disposition of this appeal. (See Coyne
v. City and County of San Francisco (2017) 9 Cal.App.5th 1215,
1223, fn. 3 [denying judicial notice as to documents that were not
relevant to court’s analysis]; Arce v. Kaiser Foundation Health
Plan, Inc. (2010) 181 Cal. App. 4th 471, 482 [“We also may decline
to take judicial notice of matters that are not relevant to
dispositive issues on appeal.”].)
32
“‘“‘“The right of counsel to discuss the merits of a case, both
as to the law and facts, is very wide, and he has the right to state
fully his views as to what the evidence shows, and as to the
conclusions to be fairly drawn therefrom. The adverse party
cannot complain if the reasoning be faulty and the deductions
illogical, as such matters are ultimately for the consideration of
the jury.”’” [Citations.] “Counsel may vigorously argue his case
and is not limited to ‘Chesterfieldian politeness.’” [Citations.]
“An attorney is permitted to argue all reasonable inferences from
the evidence . . . .” [Citation.] “Only the most persuasive reasons
justify handcuffing attorneys in the exercise of their advocacy
within the bounds of propriety.”’” (Cassim v. Allstate Ins. Co.
(2004) 33 Cal. 4th 780, 795 [statements by plaintiffs’ attorney in
closing argument equating representations by plaintiffs to claims
by jurors for pay for days court was not in session was not
attorney misconduct]; accord, IIG Wireless, Inc. v. Yi (2018)
22 Cal.App.5th 630, 646.) However, “‘[t]he law, like boxing,
prohibits hitting below the belt. The basic rule forbids an
attorney to pander to the prejudice, passion or sympathy of the
jury.’” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 295;
accord, Martinez v. Department of Transportation (2015)
238 Cal. App. 4th 559, 566-568 [concluding defense counsel’s six
references to the jury’s interest as taxpayers in the payment of
damages by defendant public transportation authority, more than
10 references to plaintiff’s job loss to show his laziness and
irresponsibility in violation of pretrial rulings, and comparison of
logo on plaintiff’s motorcycle to Nazi imagery were “truly
egregious, indisputable instances of misconduct”].)
Unzueta’s reliance on Hoffman v. Brandt (1966) 65 Cal. 2d
549 and Du Jardin v. City of Oxnard (1995) 38 Cal. App. 4th 174 is
misplaced. Hoffman involved defense counsel’s statement during
33
closing argument that a verdict for the plaintiff would put the
defendant in a public home for the indigent. (Hoffman, at p. 551,
fn. 1.) Although the trial court admonished the jury the
argument was not evidence, the Supreme Court concluded
defense counsel’s statement was prejudicial misconduct because
it had no relevance to the case, transparently “appeal[ed] to the
sympathies of the jury on the basis of the claimed lack of wealth
of the defendant,” and falsely implied the defendant had no
insurance. (Id. at pp. 552-555.) Similarly, in Du Jardin, defense
counsel argued in his closing, “‘When a public agency, be it a
school or a library or a hospital is held liable for the admittedly
negligent conduct of other people, we just have to sit back and
start counting the public services that will disappear when we
hold a public entity liable for the negligence of other persons.’”
(Du Jardin, at p. 177.) The Court of Appeal concluded the
statement was misconduct because it “improperly sought to
convince the jurors that a litany of public services they currently
receive would disappear” and “intimated that the [defendant]
City had no insurance to cover any damages.” (Id. at p. 179.)
Here, by contrast, Packer did not state (or suggest) an
award of damages would cause financial hardship to
Dr. Akopyan, nor did Packer imply Dr. Akopyan was not insured.
Rather, Packer’s statement and gesture regarding Dr. Akopyan
giving Unzueta her purse were made in the context of Packer’s
argument that liability requires proof of fault.
Unzueta has forfeited her argument of misconduct with
respect to Packer’s statement Unzueta “would like to be
supported the rest of her life by Dr. Akopyan,” because Unzueta’s
attorney failed to object during trial. “‘[T]o preserve for appeal an
instance of misconduct of counsel in the presence of the jury, an
objection must have been lodged at trial and the party must also
34
have moved for a mistrial or sought a curative admonition unless
the misconduct was so persistent that an admonition would have
been inadequate to cure the resulting prejudice.’” (Bigler-Engler
v. Breg, Inc., supra, 7 Cal.App.5th at p. 295; accord, Cassim v.
Allstate Ins. Co., supra, 33 Cal.4th at pp. 794-795 [“In addition to
objecting, a litigant faced with opposing counsel’s misconduct
must also ‘move for a mistrial or seek a curative admonition’
[citation] unless the misconduct is so persistent that an
admonition would be inadequate to cure the resulting prejudice
[citation].”].)
Henriks did not object to Packer’s statement or request a
curative instruction. Henriks’s later objection to Packer’s
reference to Unzueta’s reliance on Medi-Cal did not raise a
concern about Packer’s prior statement.
DISPOSITION
The judgment is conditionally reversed, and the matter is
remanded to the trial court to conduct a complete second and
third stage Batson/Wheeler analysis. On remand, the trial court
is to elicit defense counsel’s justifications for the peremptory
challenges to prospective jurors Medina, Quintero, Henriquez,
and Villarreal, then make a sincere and reasoned evaluation of
those explanations. If the court finds, because of the passage of
time or other reason, it is unable to conduct the evaluation, or if
any of the challenges to the six Hispanic prospective jurors were
based on racial bias, the court should set the case for a new trial.
If the court finds defense counsel’s race-neutral explanations are
credible and he exercised the six peremptory challenges in a
permissible fashion, the court should reinstate the judgment. In
35
all other respects, we affirm. Each party is to bear her own costs
on appeal.
FEUER, J.
WE CONCUR:
ZELON, Acting P. J.
SEGAL, J.
36