Jackson v. Park ( 2021 )

Filed 7/27/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
BRYCE JACKSON, B297616
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC611403)
v.
JOHN H. PARK,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Frederick C. Shaller, Judge. Affirmed.
Cholakian & Associates, Kevin K. Cholakian and Melvin F.
Marcia, Hayes, Scott, Bonino, Ellingson, Guslani, Simonson &
Clause, Mark G. Bonino and Emma B. Lloyd for Defendant and
Appellant.
Vaziri Law Group, Siamak Vaziri and Caryn Sanders for
Plaintiff and Respondent.
_______________________
INTRODUCTION
John H. Park appeals from an order granting Bryce
Jackson’s motion for a new trial based on attorney misconduct
during closing argument in this vehicle collision case. Among
other misconduct, the trial court found defense counsel falsely
argued excluded evidence did not exist and argued facts outside
the record.
It is improper for counsel to assert or imply facts not in
evidence that counsel knows could be refuted by evidence the
court has excluded. It is also improper to argue facts not in the
record, and to continue to argue those facts after the court has
instructed counsel to stop.
The trial court concluded defense counsel’s improper
arguments resulted in a miscarriage of justice warranting a new
trial. Because the trial court did not abuse its discretion in
granting Jackson’s motion for a new trial, we affirm.
FACTUAL AND PROCEDURAL HISTORY
A. The Vehicle Collision
On March 9, 2014, at approximately 3:30 a.m., Park’s
vehicle struck the rear left-side of a loaded trailer towed behind
Jackson’s pickup truck on a local freeway. California Highway
Patrol Officer Adam Powell arrived at the accident site
approximately 15 minutes after the collision. Powell observed
minor damage to both vehicles. Neither Jackson nor Park
reported any injuries, and Powell did not call an ambulance.
Jackson did not feel any pain, did not request any medical
treatment, and drove himself home in his truck without the
trailer.
2
B. Park’s Arrest and Conviction for Driving Under the
Influence of Alcohol
Powell testified Park smelled of alcohol, his speech was
slow and slurred at times, and his eyes were bloodshot. Park told
Powell he had consumed one beer at a restaurant six to eight
hours before the collision. 1 Based on Park’s performance on
several field sobriety tests, Powell concluded Park had been
driving under the influence of alcohol and arrested him.
Park submitted to two breathalyzer tests at the police
station. The results of the tests showed Park had a blood alcohol
concentration (BAC) level in excess of 0.15 percent. Park
ultimately pleaded no contest to misdemeanor driving under the
influence of alcohol. 2
C. The Trial in the Civil Case
In February 2016 Jackson filed a personal injury complaint
against Park seeking compensatory damages for negligence. 3
Jackson filed a first amended complaint in August 2018 adding a
prayer for punitive damages based on Park’s intoxication. Park
admitted liability for the collision, but contested causation and
damages.
1 Park testified at trial that he “may have” had two beers
before the collision, but he “felt fine” to drive.
2 The record does not contain a copy of the criminal
complaint or Park’s plea form, but Park admitted in the civil case
that he had pleaded no contest to misdemeanor driving under the
influence arising out of the collision.
3 Jackson also sued two alleged owners and insureds of the
car Park was driving when he hit Jackson. Both were dismissed
at trial.
3
1. The alcohol evidence
a. The trial court excludes evidence of Park’s
arrest, conviction, and breathalyzer test results
Park moved in limine to exclude evidence of his arrest and
conviction. Jackson argued in opposition that Park’s conviction
and, more generally, evidence of Park’s “practice of drunk
driving” were relevant to Jackson’s punitive damages claim and
demonstrated Park’s alleged lack of honesty and credibility. The
court and counsel had numerous discussions about Park’s motion
and the alcohol-related evidence to be admitted at trial.
The court excluded evidence of Park’s arrest and conviction.
The court ruled Powell could testify about the results of Park’s
breathalyzer tests if Powell could provide sufficient foundational
testimony regarding the use and operation of the machine used to
administer the tests. The court stated that Jackson “should be
entitled to make the case for intoxication based on the evidence
that exists outside of the blood alcohol test,” but that Powell
could not estimate Park’s BAC level or disclose the breathalyzer
test results without proper foundational testimony.
b. Powell’s testimony and violation of the court’s in
limine order
Immediately before Powell testified, the court reminded
counsel of the court’s ruling regarding the alcohol evidence: “Do
we need to talk to [Powell] in advance before we have him testify
or are we all on the same page that unless he has [the]
foundational requirements for the calibration of the
[breathalyzer] machine, . . . [the court] will not permit him to
testify regarding the blood level results.” Jackson’s counsel
responded that he had “told [Powell] that we’re not going to
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mention [the] BAC level.” The court reiterated its ruling
excluding “[t]he results of the breathalyzer test at this time,
unless some foundation is laid at some point, and any
implications that [Park] was arrested or that [Park] suffered a
conviction later on for DUI. That’s my order.” Jackson’s counsel
stated, “I’ll instruct [Powell] . . . not to mention the arrest.”
During his testimony, Powell described the collision, the
condition of the vehicles, and Jackson’s and Park’s statements
about how the collision occurred. Powell also testified about his
observations of Park’s condition and Park’s poor performance on
the field sobriety tests.
Powell explained that one of the field sobriety tests, the
horizontal gaze nystagmus test, is an “eye test” during which
Powell looks for “six clues” in a suspect’s eyes, such as pupil size
and equal tracking of both eyes. Powell testified that he observed
all six clues in Park’s eyes, and further testified that if a person’s
eyes display four of the six clues, “that’s going to tell me that
there’s a high probability that the person is over a [0].10 [percent
BAC level].” Defense counsel objected that Powell’s testimony
violated the court’s in limine order. The court overruled the
objection, stating “probability is different than what we were
talking about.”
After Powell described Park’s performance on several other
field sobriety tests, Jackson’s counsel asked Powell, “So after the
conclusion of those tests, what did you conclude?” Powell replied,
“I determined that Mr. Park was driving under the influence of
an alcoholic beverage.” In response to counsel’s next question
about whether Powell “would consider the results” of Park’s field
sobriety tests “to have been very conclusive with a high degree of
confidence,” Powell responded, “I was very confident in the
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arrest, yes.” Defense counsel objected to Powell’s mention of
Park’s arrest, and the trial court struck the testimony.
After Powell completed his testimony, defense counsel
moved for a mistrial based on Powell’s violation of the court’s
order precluding Powell from estimating Park’s BAC level and
mentioning Park’s arrest. Calling it a “close call,” the court
denied the motion. The court instead instructed the jury,
“During Officer Powell’s testimony, he made a certain number of
misstatements. I want to clarify this and give you instructions
regarding it. Officer Powell mentioned the word ‘arrest’ in his
testimony. There is no evidence of an arrest and there will be
none. Secondly, Officer Powell mentioned [a] certain blood level
of alcohol in his testimony. In this case, there is no evidence of
Mr. Park’s blood level and there will be none. Okay. I want you
to know that those pieces of evidence, I’m instructing you, those
statements are not to be considered by you and it should be
considered as if it did not happen.”
c. The other alcohol evidence
Dr. Vina Spiehler, a forensic pharmacologist, opined that
based on Park’s poor performance on the field sobriety tests, Park
was intoxicated when he hit Jackson. Spiehler also testified that
one beer would not cause a person to fail a field sobriety test, and
that to have failed the field sobriety tests Park would likely have
consumed at least five or six beers before the collision.
2. The medical and other evidence
a. Jackson’s back pain and treatment
Jackson testified that the day of the collision he felt stiff
and sore. Later that day or the next day Jackson retained a
6
lawyer to obtain advice about medical treatment and the damage
to his truck and trailer.
In March 2014 Jackson saw Dr. Stephanie Lafayette for a
cold and for preexisting hypertension. 4 Before meeting with
Dr. Lafayette, Jackson completed an intake form on March 18,
2014 on which he responded “no” to the questions, “Do you have a
history of medical problems?” and “Do you have any medical
problems now?” On March 24, 2014 Jackson reported having
zero pain in response to a pain scale question. Park subpoenaed
Dr. Lafayette to testify at trial; she testified that during
Jackson’s March 25, 2014 appointment, Jackson did not mention
any back pain.
Jackson testified he did not mention his back pain to
Dr. Lafayette because his attorneys had made an appointment for
him to see an orthopedic surgeon, Dr. Stepan Kasimian, the
following week. Jackson later rescheduled his appointment with
Dr. Kasimian to May 2014.
Jackson first saw a chiropractor about his back pain in
April 2014, a month after the collision. Jackson testified the
chiropractor’s treatment made him “feel worse and hurt, so [he]
needed to stop.” The chiropractor did not testify at trial.
Jackson saw Dr. Kasimian on May 2, 2014 for back pain
radiating to his lower leg and numbness in his fingers. Jackson
testified he had never before experienced similar lower back pain,
and that no doctor had ever told him before the collision that he
had any lower back condition. Dr. Kasimian ordered an MRI of
Jackson’s back in July 2014, which revealed a disc herniation or
4 Jackson saw Dr. Lafayette in jail while incarcerated for an
unrelated matter. The trial court excluded evidence of Jackson’s
criminal history and incarceration.
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protrusion in Jackson’s lower back. Jackson testified
Dr. Kasimian discussed treatment options with him, including
physical therapy, injections, and surgery, but Jackson felt uneasy
about surgery and sought other opinions. Dr. Kasimian did not
testify at trial.
In August 2014 Jackson saw Dr. Aaron Coppelson, who
performed an electromyography (EMG) test. The EMG test was
normal and showed “no issues in [Jackson’s] cervical spine.”
Dr. Coppelson did not testify at trial.
In November 2014 Jackson saw another orthopedic
surgeon, Dr. Kasra Rowshan, for pain radiating from his back to
his legs, and numbness and tingling in his fingers. Dr. Rowshan
reviewed photographs of the March 9, 2014 collision, Jackson’s
medical records, and the results of the July 2014 MRI exam.
Dr. Rowshan opined that the collision “led to the injury in
[Jackson’s] lumbar spine,” including a herniated disc.
Dr. Rowshan also testified Jackson had a congenital condition
that could predispose Jackson to spinal slippage and instability.
Starting in December 2014 Dr. Rowshan administered
three lumbar epidural injections to Jackson over six months.
When Jackson’s pain returned following the injections,
Dr. Rowshan performed a lumber laminectomy surgery on
Jackson in July 2015 to remove nerve pressure. Jackson’s back
pain initially improved following the surgery, but eventually
returned to its presurgery level.
In October 2018 Jackson complained to Dr. Rowshan of
lower back pain and pain radiating down his right leg. Jackson
reported the pain interfered with his ability to stand and to
perform daily activities. Dr. Rowshan recommended Jackson
undergo a spinal fusion surgery to remove Jackson’s damaged
8
lumbar disc. Jackson had not had the second surgery at the time
of the trial, but testified he planned to have the surgery because
of his continuing pain. Dr. Rowshan opined that as a result of
the collision Jackson would have back pain for the rest of his life.
Jackson testified he worked at his mother’s furniture store
from 2009 to 2018. Jackson did not call any of his coworkers to
testify at the trial. Jackson testified his daily life after the
collision was “a lot harder,” and that he was rude to his family
and could not participate in activities with his children.
Jackson’s wife, Justine Thompson, testified Jackson told
her after the collision that his back hurt, and that the pain
worsened in the months after the collision. Thompson testified
that since the collision Jackson had become short-tempered with
their children and could not play with them because of his back
pain.
b. The accident reconstruction evidence
Jackson’s accident reconstruction expert, John Landerville,
testified Jackson’s truck incurred significant frame damage in
the collision. Landerville described Jackson’s tow hitch as
“basically destroyed” in the collision, and Park’s car as “a total
loss and gone.” Landerville testified the force of the collision
lifted the suspension of Jackson’s truck, which Jackson would
have felt inside the truck.
Jackson’s biomechanical expert, Dr. Rami Hashish,
testified about the forces in the collision, and the effect of a low
impact collision on a hypothetical patient at increased risk for
injury. Dr. Hashish opined the collision was sufficiently severe to
cause the type of disc injury Jackson suffered.
Park’s accident reconstruction and biomechanical expert,
Judson Welcher, ran simulations of the crash. Welcher opined
9
Jackson’s trailer tow hitch had not been properly installed, and
thus had failed at a lower force load than it should have. Welcher
noted little damage to Jackson’s trailer, and disagreed with
Landerville that the truck suspension had lifted in the collision.
Welcher also testified that while Jackson’s preexisting conditions
increased Jackson’s risk of injury in a traffic collision, the same
conditions also increased his risk of injury from everyday lifting.
c. The other medical expert testimony and the
medical billing evidence
Jackson’s medical expert, radiologist Dr. Alyssa Watanabe,
reviewed Jackson’s July 2014 MRI films. Dr. Watanabe testified
Jackson’s MRI showed an acute disc herniation or protrusion that
had occurred less than six months before the scan.
Defense expert Dr. Richard Rhee, a radiologist, reviewed
Jackson’s medical records. Dr. Rhee acknowledged that
Jackson’s July 2014 MRI scan showed a small disc protrusion,
but could not conclude based on the protrusion’s appearance “that
it was related to the subject accident on a more probable than not
basis.”
Another defense medical expert, orthopedic surgeon
Dr. Steven Nagelberg, testified that Jackson did not need surgery
as a result of the collision, and did not need surgery at all.
Dr. Nagelberg questioned whether Jackson had suffered any
spinal injury and opined that Jackson’s spinal scan showed no
structural abnormalities.
The parties offered competing expert opinions about the
reasonable value of Jackson’s medical treatments. Jackson’s
forensic medical coder and biller Jacqueline Nash Bloink opined
that the reasonable value of Jackson’s past medical expenses was
$70,666.81, and the estimated reasonable value of Jackson’s
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future medical expenses was $66,159. Park’s medical billing
auditor Nancy Fraser Michalski opined that the reasonable value
of Jackson’s past medical expenses was $36,661.36.
3. The closing arguments
The court instructed the jury before closing arguments.
The instructions included CACI No. 203 (party having power to
produce better evidence), which states, “You may consider the
ability of each party to provide evidence. If a party provided
weaker evidence when it could have provided stronger evidence,
you may distrust the weaker evidence.”
In his closing argument, Jackson’s counsel argued Park
“was drunk [and] couldn’t see [Jackson’s] trailer because he was
intoxicated.” Jackson’s counsel asserted the evidence showed the
collision caused Jackson’s back injury. Jackson sought
$70,666.81 in past economic damages, $66,159 in future economic
damages, and more than $1,200,000 in past and future
noneconomic damages. Jackson’s counsel also argued Park acted
fraudulently and with malice by lying about the number of
alcoholic drinks he had consumed before the collision.
At the outset of the defense closing argument, defense
counsel Kevin Cholakian argued “there was absolutely no
evidence that John Park intended to hurt anybody or acted in a
despicable manner.” Defense counsel asserted that the “only
reason” Jackson sought punitive damages was “to cloud your
judgment.”
Defense counsel argued Park “just clipped” Jackson’s
trailer by “mistake” after Park missed his freeway exit. Defense
counsel continued:
“There’s no evidence that alcohol caused [Park]
to make that mistake, but it was 3:30 in the morning.
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He said he was tired. So he made a mistake. He
admitted responsibility. But trying to take that act
and trying to say alcohol was the reason why, where’s
the evidence that alcohol caused that? There’s no
evidence that alcohol caused that. Again, he clipped
the trailer.
“There’s zero evidence of an arrest, of BAC or
[of a] conviction. The court, the judge, told you all, if
you remember last week, . . . ‘During Officer Powell’s
testimony, he made a certain number of
misstatements. I want to clarify this and give you
instructions regarding it. Officer Powell mentioned
the word “arrest” in his testimony. There is no
evidence of an arrest and there will be none.’
“‘Secondly, Officer Powell mentioned [a] certain
BAC level of alcohol in his testimony. In this case
there’s no evidence of Mr. Park’s blood alcohol, and
there will be none, okay. I want you to know these
pieces of evidence, I’m instructing you, those
statements are not to be considered by you, and it
should be considered as if it did not happen. Okay.’
“So the judge has instructed that nothing
beyond the suspicion by Officer Powell is
involved . . . .
“There’s only one point, to cloud your judgment
about the real case that’s here, which is, is this a
personal injury case or not? Is this a rear-end
accident or not? That’s what the case is about.
That’s it. There’s no definitive evidence of
intoxication, only evidence of a subjective test. I’m
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not criticizing the officer. That was his opinion,
that’s all we have, and that’s all there is.”
As defense counsel made this argument, he displayed a
demonstrative exhibit that stated, “There is zero evidence of
arrest, BAC, or [c]onviction; the only evidence in the case
regarding alcohol consumption before this accident was suspicion
by Ofc. Powell. . . . No definitive evidence of intoxication, only
evidence of a subjective test regarding physical activities a tired
John Park allegedly failed at 3:30 a.m.”
Defense counsel then addressed CACI No. 203. He argued:
“This instruction is an important instruction
that the court’s given to you. ‘You may consider the
ability of each party to provide evidence. If a party
provided weaker evidence when it should have
provided stronger evidence, you may distrust the
weaker evidence.’ Ladies and gentlemen, what’s
wrong with this picture? What’s wrong with the
picture in this case in terms of the witnesses that
were presented? You didn’t hear from Mr. Jackson’s
chiropractor, did you? You didn’t hear from
Dr. Kasimian, did you? You didn’t hear from
Dr. Koppleson [sic] who did a cervical EMG that was
negative . . . . You didn’t hear of any doctor that the
plaintiff presented, that the plaintiff even saw after
this accident for the first seven months following this
accident. That’s just kind of unheard of.
“[I]f you were injured in an accident, aren’t you
going to have some medical attention and bring, as
the plaintiff in a case this long, two weeks long, bring
a doctor who actually saw the plaintiff or even a
13
chiropractor in the first seven months after an
accident? It’s unthinkable you don’t bring that.
“And the plaintiff has that responsibility. They
had the burden of proof. . . . Did they subpoena these
folks? Did they bring them in like we brought in
Dr. Lafayette, who came all the way from Palm
Desert, a lot farther from where these folks traveled
from in Los Angeles. What’s up with that?
“What’s up with this? [Jackson] worked, he
said, for nine years at the [furniture store], nine
years. Nowhere else.”
Jackson’s counsel objected in the jury’s presence, “This is not in
evidence.” Defense counsel replied, “It sure is. He testified to it.”
The court responded, “The jury will have to decide whether it’s in
evidence or not. So go ahead.”
Defense counsel continued with his argument: “[Jackson]
did not work, other than [at] the [furniture store], in the last nine
years. He said that in his deposition. . . . He has employees that
are co-fellow employees or other employees that he’s worked with.
It’s unheard [of] that you don’t have the co-employees come, at
least one or two of them, and say ‘Hey, yeah, I saw him walking
around. I saw him hurt. I saw him complain. He told me about
how he got injured.’ Where was a single witness from the
[furniture store]? Not a one.”
At this point the court intervened, and the court and
defense counsel had the following exchange in the jury’s presence:
“[COURT:] Okay. I don’t know if I misconstrued
counsel’s objection, but to the extent that you’re
commenting on [a] failure to call witnesses that were
14
equally available to both sides, that’s improper. Let’s
not mention it.
[DEFENSE COUNSEL:] Well, I don’t know that they
were equally available to both sides, Your Honor, but
the bottom line is that’s where [Jackson] worked.
And he had the ability—they had the ability to call
those witnesses. Burden of proof—
[COURT:] I have no evidence to suggest [Jackson]
did or didn’t, or you did or didn’t. That’s the problem.
[DEFENSE COUNSEL:] Okay.”
Despite the court’s comments, defense counsel picked up where
he had left off: “In any event, there was no witness called from
the [furniture store]. The burden of proof is on the plaintiff to
prove their case.”
After summarizing and contrasting the testimony of the
parties’ witnesses, defense counsel next turned to Dr. Lafayette:
“Dr. Lafayette, we didn’t hire her, ladies and gentlemen. We did
not hire [her]. You saw her. Do you think she was biased? Do
you think she was committed to one side or the other? We didn’t
know her. We didn’t know about her. You know why we didn’t
know about her early on . . . ? We didn’t know because plaintiff
in answers to interrogatories in discovery and in his
deposition . . . .”
Jackson’s counsel objected, and the following colloquy
occurred in the jury’s presence:
“[JACKSON’S COUNSEL:] Not in evidence.
[COURT:] That was not in evidence.
[DEFENSE COUNSEL:] Yeah, not in our case, but
in his deposition.
15
[JACKSON’S COUNSEL:] Not in evidence, Your
Honor.
[DEFENSE COUNSEL:] No, the deposition, he
didn’t. That’s in evidence.
[COURT:] That part of the deposition was not read.
So sustained. The jury is to disregard that argument.
[DEFENSE COUNSEL:] Wait a minute, Your Honor.
There was—we asked who all the doctors were he
saw, and he didn’t mention Dr. Lafayette. So—
[COURT:] Interrogatory.
[DEFENSE COUNSEL:] No, I agree with you on the
interrogatory, but the deposition, if we ask ‘who have
you seen,’ and he’s never mentioned Dr. Lafayette.
[COURT:] Well—
[DEFENSE COUNSEL:] That’s the point.
[COURT:] I don’t recall that testimony, that answer
being read in.
[DEFENSE COUNSEL:] What answer is that?
[COURT:] The answer you are referring to from his
deposition.
[DEFENSE COUNSEL:] We—
[COURT:] So, in other words, it’s outside of the
evidence. Don’t argue it.
[DEFENSE COUNSEL:] Okay.”
Undeterred by the court’s instructions, defense counsel
continued his argument about Dr. Lafayette: “Dr. Lafayette we
found out about. We learned about Dr. Lafayette. That is why
Dr. Lafayette came to this trial, because we tracked her down.
She retired, and we found her, and we subpoenaed her for
16
deposition. . . . [A]nd then after that deposition, we subpoenaed
her for trial. It was my office that did that.”
Jackson’s counsel again objected, and the following
exchange occurred, again in the jury’s presence:
“[JACKSON’S COUNSEL:] Your Honor, this is all
improper argument.
[COURT:] What you did in an investigation is not in
evidence. So sustained. So, counsel, stick to what
was in evidence through the witnesses in this case;
otherwise, I think you are getting close to misconduct
here.
[DEFENSE COUNSEL:] Okay. We called
Dr. Lafayette. We did call her, that is standard, for
trial.
[JACKSON’S COUNSEL:] Okay. Can we have a
sidebar please?
[DEFENSE COUNSEL:] That we subpoenaed her for
trial?
[JACKSON’S COUNSEL:] Sidebar, please.
[COURT:] Well, okay. Why don’t we take a ten-
minute break.”
With the jury on a break, the court and counsel discussed
Jackson’s counsel’s objections and defense counsel’s arguments.
Jackson’s counsel asserted that defense counsel’s arguments
about the alcohol evidence and Dr. Lafayette constituted “blatant
misconduct.”
The court informed defense counsel that arguing matters
not in evidence “is improper.” The court stated that no evidence
admitted at trial supported defense counsel’s claims that Jackson
had not identified Dr. Lafayette in his discovery responses, or
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that defense counsel had located Dr. Lafayette through counsel’s
investigation. The court also stated that defense counsel’s
“suggest[ion] that the plaintiff didn’t call witnesses without any
information about whether they’re available or not,” when “you
could have called any one of those three witnesses,” was
improper. The court concluded: “You have really stepped over
the line here.”
The court then identified other improper portions of
defense counsel’s closing argument and demonstrative exhibits:
“[T]here were several things in your slideshow
here that are totally improper. . . . [W]hen you have
made a motion to exclude the blood alcohol level and
the fact of an arrest, and then you use that as a
centerpiece of your argument, you know, you flip it
around. . . .
“So all of these things are going to line up
pretty heavily to give me the impression that there’s
misconduct here. . . . You presented some pretty
strong evidence. Stick with it.”
When the trial resumed, the court admonished the jury to
disregard defense counsel’s arguments about witnesses Jackson
had not called and about the alcohol evidence: “So counsel
commented on the failure of plaintiff to call certain witnesses.
These witnesses were equally available to both sides who have
been called in this trial. You must disregard such argument in
reaching your decision this matter. Secondly, counsel mentioned
that there was no evidence of a blood alcohol level or arrest.
There was no such evidence or such blood alcohol level or arrest
one way or the other on this subject. You must disregard such
argument in reaching your decision in this matter.”
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Following the court’s admonition, defense counsel
continued his closing argument. Defense counsel argued that “if
there’s damages,” the jury should award Jackson “like $15,000 for
his discomfort.”
D. The Jury Verdict
The jury returned its verdict the following day. The jury
found Park’s negligence was a substantial factor in causing
Jackson’s harm. The jury awarded Jackson $15,235 in past
economic damages and $2,000 in past noneconomic damages.
The jury did not award Jackson any future economic or
noneconomic damages. The jury also found Park’s conduct was
not malicious, oppressive, or fraudulent. The court entered
judgment on March 6, 2019.
E. The Motion for a New Trial
On March 21, 2019 Jackson filed a notice of his intention to
move for a new trial. Jackson identified several grounds for his
motion, including irregularity in the proceedings pursuant to
Code of Civil Procedure section 657, subdivision (1). Jackson
argued defense counsel had engaged in prejudicial misconduct
during closing argument by exploiting the court’s in limine order
excluding evidence of Park’s arrest, conviction, and breathalyzer
test results to suggest falsely that Park was not intoxicated
during the collision and was not arrested after the collision.
Park argued in opposition that defense counsel had not
engaged in misconduct, but that if he had committed misconduct,
the court’s admonitions had remedied any improper argument.
Park also argued the evidence supported the jury’s verdict.
At the April 22, 2019 hearing on the motion, the court
stated that defense counsel had taken the “in limine order
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precluding the admission of the [BAC] analysis, the fact of arrest
[and] the conviction . . . for DUI, and then the court’s admonition
after Officer Powell’s testimony, stating that we should treat this
as [if] it did not exist, but then you flipped it around and basically
used it as a sword to say . . . there was no DUI, there was no
abnormal BAC, or there was no conviction. At least you implied
that by your argument.”
The court also stated that it was improper for defense
counsel to have commented that Jackson had not called witnesses
to testify when the witnesses were known and equally available
to the defense by subpoena, and improper to have claimed
Jackson had hidden Dr. Lafayette from the defense. Describing
the trial as a “close-call case” because the defense presented
“pretty strong” evidence the collision was minor, but Jackson
“had very strong evidence” the collision caused a disc herniation
resulting in spinal surgery, the court took the motion under
submission “to consider the whole issue of prejudice.”
F. The Trial Court’s Order Granting the Motion for a New
Trial
The court issued a detailed order the following day vacating
the March 6, 2019 judgment and granting Jackson’s motion for a
new trial on causation and damages. 5 The court ruled, “The
order is based upon multiple incidents of misconduct by defense
counsel . . . during final argument that constitutes a prejudicial
irregularity in the proceeding under [Code of Civil Procedure
section] 657(1) that could not be cured by the admonitions of the
court to the jury to disregard the inappropriate argument and
5 The court ruled liability would not be retried because Park
had admitted liability.
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which deprived plaintiff of a fair trial.” The misconduct “was
prejudicial and likely caused the jury to give an inadequate
award of compensatory damages and to fail to reach the issue of
punitive damages.”
First, the trial court ruled that, relying on the court’s
admonition to the jury regarding Powell’s testimony, defense
counsel falsely argued no evidence existed that Park had been
arrested for or convicted of driving under the influence, or that
Park had a BAC level in excess of the legal limit. The court
explained that when “a party has been precluded from offering
evidence because of an evidentiary ruling finding it inadmissible,
the party asserting the evidentiary sanction should not be
permitted to use the court’s ruling as a basis to make an
argument that implies that the evidence is much more favorable
to the asserting party than it actually is.”
Second, the court found defense counsel improperly argued
Jackson had concealed Dr. Lafayette from the defense, and that
defense counsel “had to track Dr. Lafayette down” so she could
testify at trial. The court further observed that defense counsel
argued with the court in front of the jury after the court
instructed counsel not to claim Jackson had not identified
Dr. Lafayette in his discovery responses. The court found defense
counsel’s persistent argument “was clearly an intentional effort
to complete the argument to clearly advise the jury of the untrue
assertion that plaintiff had concealed evidence in discovery,” and
was “misconduct because it repeatedly [brought] before the jury a
theory of willful suppression of evidence based upon facts that
were not in evidence.” Defense counsel’s continued argument
before the jury “after the court sustained plaintiff’s objection and
21
admonished the jury not to consider the argument” was “further
misconduct.”
Third, the court ruled defense counsel improperly argued
the jury should infer from Jackson’s failure to call medical
witnesses and coworkers known and equally available to the
defense that the witnesses would have offered testimony adverse
to Jackson. The court found that “the resulting low verdict on
damages likely resulted in part from the jury’s discounting of
plaintiff’s witnesses on damages based upon this argument.”
Further, defense counsel improperly argued based on CACI
No. 203 that Jackson’s witnesses’ trial testimony was weaker
evidence than the evidence the uncalled witnesses would have
offered. 6
The court found defense counsel’s misconduct prejudiced
Jackson. Jackson produced “very compelling and credible
medical evidence” supporting his contention he suffered a
herniated disc in the collision that required surgery. The court
concluded, “The award of $15,235 for past medical special
damages and $0 for future medical specials and for only $2,000 in
pain and suffering was achieved by defendant by unfair tactics.
The weight of the evidence indicated to the court that the jury’s
verdict should have been much greater.” The court also ruled
that its admonitions to the jury were insufficient to negate the
prejudicial effect of defense counsel’s misconduct, “result[ing] in a
miscarriage of justice.”
6 The court also found defense counsel disparaged Jackson’s
counsel’s character, and “falsely and improperly implied that
[Jackson’s] argument[s] [were] specious because [Jackson’s
counsel] was attempting to obtain a verdict based upon an
emotional appeal to [each] juror’s self-interest.”
22
Park timely appealed the order granting the motion for a
new trial. 7
DISCUSSION
A. Applicable Law and Standard of Review
“The authority of a trial court in this state to grant a new
trial is established and circumscribed by statute. [Citation.]
[Code of Civil Procedure] [s]ection 657 sets out seven grounds for
such a motion: (1) ‘Irregularity in the proceedings’;
(2) ‘Misconduct of the jury’; (3) ‘Accident or surprise’; (4) ‘Newly
discovered evidence’; (5) ‘Excessive or inadequate damages’;
(6) ‘Insufficiency of the evidence’; and (7) ‘Error in law.’”
(Oakland Raiders v. National Football League (2007) 41 Cal.4th
624, 633 (Oakland Raiders); accord, Knutson v. Foster (2018)
25 Cal.App.5th 1075, 1089.) “Attorney misconduct is an
irregularity in the proceedings and a ground for a new trial.”
(Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148
(Garcia).)
7 Park filed three motions to augment the appellate record.
We granted Park’s first and second motions. Park’s third motion,
which Jackson opposes, seeks to augment the appellate record
with copies of discovery responses and a deposition transcript
Park acknowledges were not introduced into evidence at trial.
“Augmentation does not function to supplement the record with
materials not before the trial court.” (Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; see also Cal.
Rules of Court, rule 8.155(a)(1)(A) [a reviewing court may order
the record augmented to include “[a]ny document filed or lodged
in the case in superior court”].) Park’s third motion to augment is
denied.
23
We review the order granting a new trial for an abuse of
discretion. (Oakland Raiders, supra, 41 Cal.4th at p. 636.) “‘The
determination of a motion for a new trial rests so completely
within the court’s discretion that its action will not be disturbed
unless a manifest and unmistakable abuse of discretion clearly
appears. This is particularly true when the discretion is
exercised in favor of awarding a new trial, for this action does not
finally dispose of the matter. So long as a reasonable or even
fairly debatable justification under the law is shown for the order
granting the new trial, the order will not be set aside.’”
(Simers v. Los Angeles Times Communications (2018)
18 Cal.App.5th 1248, 1275 (Simers).) 8
B. The Trial Court Did Not Abuse Its Discretion in Granting
the Motion for a New Trial
1. The misconduct
a. The misconduct regarding the alcohol evidence
Defense counsel’s arguments that “[t]here’s no evidence
that alcohol caused” the collision, that “[t]here’s zero evidence of
an arrest, of BAC or [of a] conviction,” and that Powell’s “opinion”
of Park’s intoxication was “all there is” were improper. Evidence
of Park’s arrest, conviction, and BAC level existed; the trial court
had excluded the evidence at Park’s behest. It is improper for
8 Park argues we should reverse the trial court’s order
granting a new trial because substantial evidence supports the
jury’s verdict. The standard for review of an order granting a
new trial motion is not whether substantial evidence supports the
verdict, but whether the court manifestly and unmistakably
abused its discretion in granting the new trial motion. (Simers,
supra, 18 Cal.App.5th at p. 1275.)
24
counsel to assert or imply facts not in evidence that counsel
knows excluded evidence could refute. (Hoffman v. Brandt (1966)
65 Cal.2d 549, 555 [defense counsel’s argument falsely implying
defendant lacked insurance was misconduct requiring reversal of
judgment]; Frio v. Superior Court (1988) 203 Cal.App.3d 1480,
1487 [“if Frio were to be precluded from giving testimony because
of the evidentiary sanction of [Penal Code] section 632
[precluding admission of evidence obtained through
‘eavesdropping upon or recording a confidential communication’],
the party asserting the sanction should not be permitted to use it
as a shield for perjury”]; Cordi v. Garcia (1940) 39 Cal.App.2d
189, 197 [“It was prejudicial error for plaintiff’s attorney to refer
in his argument to the jury to the contents of reports or letters
affecting the injuries received by the plaintiff, the inspection and
use of which documents were refused and which instruments
were not received in evidence. The jury may have secured the
impression from the argument that they were much more
favorable to the plaintiff than the facts would warrant.”]; see also
Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 325-326 (dis.
opn. of Traynor, J.) [“It is misconduct to suggest facts not in
evidence that counsel knows could be contradicted by evidence
the court has excluded.”]; Hansen v. Warco Steel Corp. (1965)
237 Cal.App.2d 870, 878 [“Counsel was guilty of serious
misconduct in arguing the importance of the excluded document
and in asking the jury to draw an inference because plaintiff’s
attorney had made an objection which the court had sustained.
This kind of misconduct, under some circumstances, is ground for
reversal of a judgment.”].)
Furthermore, defense counsel not only falsely argued
“[t]here’s no evidence that alcohol caused” the collision, he also
25
used the court’s admonition about Powell’s testimony to fortify
his assertion that “[t]here’s no definitive evidence of intoxication.”
After repeating the court’s admonition, defense counsel told the
jury “the judge has instructed that nothing beyond the suspicion
by Officer Powell is involved.” This argument both grossly
misrepresented the court’s admonition and improperly infused
defense counsel’s misleading argument with the authority of the
court. The trial court did not err in finding defense counsel’s
arguments about the alcohol evidence constituted misconduct.
b. The misconduct regarding Dr. Lafayette
Defense counsel’s arguments that Jackson did not disclose
Dr. Lafayette in his discovery responses and that defense counsel
located Dr. Lafayette through counsel’s own investigation were
also improper. Defense counsel told the jury that Jackson did not
disclose Dr. Lafayette “in answers to interrogatories in discovery
and in his deposition.” After Jackson’s counsel objected, defense
counsel agreed the interrogatory responses to which he had
referred were not in evidence, but argued with the court that the
deposition testimony had been read into evidence. The court
disagreed, ruling “it’s outside of the evidence. Don’t argue it.”
Ignoring the court’s ruling, defense counsel then argued to
the jury that the defense “found out about” Dr. Lafayette, and
that Dr. Lafayette “came to this trial because we tracked her
down. . . . It was my office that did that.” After the court
sustained another objection by Jackson’s counsel, defense counsel
again argued with the court asserting, “We called Dr. Lafayette.
We did call her, that is standard, for trial.”
Park appears to concede defense counsel’s arguments about
Dr. Lafayette were improper. Park instead claims the trial
court’s admonition to the jury following the mid-argument break
26
cured any prejudice to Jackson from the improper arguments.
The admonition, however, did not address defense counsel’s
improper arguments about Dr. Lafayette. The admonition
addressed defense counsel’s arguments about the alcohol
evidence and Jackson’s failure to call witnesses. Because the
admonition did not refer to Dr. Lafayette, it could not have cured
the prejudice to Jackson from defense counsel’s arguments about
her. 9
Moreover, Park ignores that defense counsel repeatedly
argued with the court in the jury’s presence about Jackson’s
alleged failure to disclose Dr. Lafayette in his discovery
responses. The court sustained Jackson’s objection to defense
counsel’s first reference to the discovery responses and instructed
the jury to “disregard that argument.” After the court ruled,
defense counsel continued to argue with the court, including
repeatedly referring to the deposition testimony the court had
just ruled was not in evidence. The court again ruled the
9 Park’s insistence that Jackson did not disclose
Dr. Lafayette’s identity in his discovery responses misses the
point. As Park concedes, neither the interrogatory responses nor
the deposition testimony to which defense counsel referred in
closing argument was in evidence. Defense counsel’s arguments
about Jackson’s discovery responses were not improper because
they were factually wrong; they might have been factually
correct, i.e., Jackson may not have identified Dr. Lafayette in his
discovery responses. The arguments were improper because the
interrogatory responses and deposition testimony to which
defense counsel referred were not in evidence. (See Cassim v.
Allstate Ins. Co. (2004) 33 Cal.4th 780, 795-796 [“‘[w]hile a
counsel in summing up may indulge in all fair arguments in favor
of his client’s case, he may not assume facts not in evidence or
invite the jury to speculate as to unsupported inferences’”].)
27
deposition testimony was not in evidence, instructing defense
counsel not to argue that Jackson had not disclosed
Dr. Lafayette. Defense counsel disregarded the court’s ruling,
telling the jury that Dr. Lafayette “came to this trial because we
tracked her down.” Jackson’s counsel objected again, and the
court sustained the objection, again instructing defense counsel
not to argue matters not in evidence: “What you did in an
investigation is not in evidence. So sustained. . . . [S]tick to what
was in evidence through the witnesses in this case.” Defense
counsel argued with the court yet again before the court finally
excused the jury for a break.
Defense counsel’s conduct during this whole sorry episode
was improper. It was improper to argue evidence not in the
record, improper to refer repeatedly to that evidence after the
court ordered counsel to stop, and improper to argue with the
court in front of the jury in a transparent effort to highlight the
evidence the court had instructed counsel not to mention. The
trial court did not err in finding defense counsel’s arguments
about Dr. Lafayette constituted misconduct.
2. The prejudice
“[I]t is not enough for a party to show attorney misconduct.
In order to justify a new trial, the party must demonstrate that
the misconduct was prejudicial.” (Garcia, supra, 204 Cal.App.4th
at p. 149; accord, Martinez v. Department of Transportation
(2015) 238 Cal.App.4th 559, 568 [“[A]ttorney misconduct is more
common than reversal for attorney misconduct. Prejudice must
be shown.”].) In determining whether misconduct was
prejudicial, “a reviewing court makes ‘an independent
determination as to whether the error was prejudicial.’” (Garcia,
at p. 149.) The court “must determine whether it is reasonably
28
probable [that the [party asserting misconduct occurred]] would
have achieved a more favorable result in the absence of that
portion of [attorney conduct] now challenged.” (Ibid.)
The common theme of defense counsel’s improper
arguments was that Jackson was untruthful—that he lied about
Park’s intoxication and concocted a punitive damages claim, and
that he served false discovery responses and concealed
Dr. Lafayette from the defense. Defense counsel falsely argued
no evidence of Park’s arrest, conviction, or BAC level existed, and
misrepresented the court’s curative admonition as a jury
instruction that the only evidence of intoxication was Powell’s
“suspicion.” Defense counsel then argued Jackson hid
Dr. Lafayette by failing to disclose her identity in discovery,
requiring the defense to “track[] her down” through defense
counsel’s investigation. Either of these improper arguments
might have been sufficiently prejudicial to Jackson to warrant a
new trial. Cumulatively, we readily conclude it is reasonably
probable Jackson would have achieved a more favorable result
without defense counsel’s improper arguments.
The jury’s verdict in Jackson’s favor demonstrated that the
jury found the collision caused by Park’s negligence harmed
Jackson. But the jury awarded significantly less in past damages
than Jackson sought, less in past economic damages than Park’s
expert calculated, and no future damages. The jury appears to
have almost entirely discounted Jackson’s evidence, including the
testimony of his treating surgeon, that as a result of the collision
Jackson suffered a herniated disc that required surgery, and that
Jackson may well require a second surgery. It is reasonably
probable defense counsel’s arguments that Jackson concealed
Dr. Lafayette from the defense, and, moreover, did so by means of
29
litigation subterfuge, caused the jury to magnify Dr. Lafayette’s
testimony, to disregard Jackson’s explanation for his failure to
mention his back pain to her, and to discount unfairly the
testimony of Jackson’s witnesses about the extent of Jackson’s
damages while overemphasizing Park’s witnesses’ testimony.
The jury also rejected Jackson’s argument that Park’s
intoxication and statements about his drinking on the night of
the collision demonstrated malice, fraud, and oppression. It is
reasonably probable defense counsel’s improper arguments about
the alcohol evidence—most egregiously, his false claim that “the
judge has instructed that nothing beyond the suspicion of Officer
Powell is involved”—unfairly influenced the jury’s evaluation of
Jackson’s evidence and arguments about Park’s intoxication. The
trial court did not abuse its discretion in concluding that defense
counsel’s misconduct prejudiced Jackson and warranted a new
trial on causation and damages. 10
10 Because we conclude the trial court did not abuse its
discretion in granting Jackson’s new trial motion based on
defense counsel’s improper arguments about the alcohol evidence
and Dr. Lafayette, we need not reach Park’s contentions that the
trial court erred in finding defense counsel’s arguments about
Jackson’s failure to call witnesses and disparagement of
Jackson’s counsel were also improper and provided additional
grounds to grant Jackson’s motion.
30
DISPOSITION
The order granting a new trial on causation and damages is
affirmed. Jackson shall recover his costs on appeal.
McCORMICK, J. ∗
We concur:
SEGAL, Acting P. J.
FEUER, J.
∗
Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
31