Plascencia v. Deese

Filed 1/20/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
RODOLFO PLASCENCIA et al., 2d Crim. No. B299142
(Consolidated with No.
Plaintiffs and Respondents, B299925)
(Super. Ct. No. 56-2015-
v. 00475756-
CU-PO-VTA)
CHARLES GYNN DEESE et al., (Ventura County)
Defendants and Appellants.
One of the institutional functions of the California
Court of Appeal is to opine on whether or not an error at trial has
resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.)1
Here, there has been a miscarriage of justice and we must vacate
the $30 million dollar non-economic damage award in this
highway fatality case.
1“No
judgment shall be set aside, or new trial granted, in
any cause, on the ground of misdirection of the jury, or of the
improper admission or rejection of evidence, or for any error as to
any matter of pleading, or for any error as to any matter of
procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the
error complained of has resulted in a miscarriage of justice.”
(Cal. Const., art VI, § 13.)
In personal injury and wrongful death actions,
noneconomic damages are governed by Proposition 51, which
eliminated the perceived unfairness of imposing “all the damage”
on defendants who are “found to share [only] a fraction of the
fault.” (Civ. Code, § 1431.1, subd. (b); DaFonte v. Up-Right,
Inc. (1992) 2 Cal.4th 593, 603 (DaFonte).) A defendant is liable
only for the percentage of noneconomic damages that corresponds
to his or her proportionate fault. (Civ. Code, § 1431.2, subds. (a)
& (b)(2); Soto v. BorgWarner Morse TEC Inc. (2015) 239
Cal.App.4th 165, 202.) Stated another way, “a ‘defendant[’s]’
liability for noneconomic damages cannot exceed his or her
proportionate share of fault as compared with all fault
responsible for the plaintiff’s injuries, not merely that of
‘defendant[s]’ present in the lawsuit.” (DaFonte, supra, at p.
603.) Here, the jury was not permitted to consider the
comparative fault of defendants who settled before trial.
Reversal is required for this reason alone.
The second reason for reversal is that respondents’
counsel engaged in prejudicial misconduct. Appellants contest a
$30 million award of noneconomic damages. The jury found
appellants 40 percent at fault and the motorist who made an
illegal U-turn 60 percent at fault. In final argument,
respondents’ counsel, referring to appellant Deese, told the jury:
“You can’t stone him to death” but you can “make him pay.” In
violation of a pretrial in limine order prohibiting counsel from
invoking the Golden Rule, respondents’ counsel asked the jury to
“imagine” it was “your daughter” and “some guy broke a rule that
he knew he couldn’t break . . . and your daughter is taken away.”2
2Before trial, the trial court ordered that “plaintiffs will not
argue that the jury should award wrongful death damages based
2
Finally, respondents’ attorney accused appellants and their
attorney of “lying,” of delaying settlement with respondents for
five years, and of presenting a defense that is a “fraud.” This was
misconduct and it denied appellants a fair trial. (Cal. Const., art.
VI, § 13.)
Facts and Procedural History
On April 19, 2014, Anita Newcomb made an illegal U-
turn on SR 126, a four-lane highway, as she left Francisco’s fruit
stand on the south side of the highway. Respondents’ 20-year-old
daughter, Jocelyne, swerved to avoid hitting Newcomb. Jocelyne
lost control of her Camry and crashed into the back of appellants’
80,000-pound diesel tractor-trailer, which Deese had parked on
the south side of the highway near the fruit stand.
Minutes before the collision, Deese testified that he
smelled hot engine oil and parked the diesel tractor-trailer three
feet to the right of the highway fog line. Deese believed it was an
emergency. He opened the engine hood but saw no oil leaks.
After concluding there was no emergency, Deese left the truck
unattended with his co-driver asleep in the truck cab and walked
to the fruit stand to buy strawberries.3 Seconds later, Jocelyne
on what jurors would feel they would want as compensation if
they had suffered the loss.”
3At trial, Deese stated it was a roadside emergency and
that he opened the engine hood and inspected the engine. That
was disputed by respondents. The fruit stand surveillance video
showed Deese park the truck and walk back to the fruit stand.
No one opened the engine hood, inspected the engine or truck
wheels, or put out reflective triangles to warn motorists. Nor did
Deese tell the company dispatcher he was making an emergency
stop. Truck experts testified that the standard of care was not to
3
swerved to avoid the U-turn driver, skidded for three seconds
across the highway, and hit the back of the tractor-trailer.
Jocelyne was airlifted to the hospital and died a month later.
Pretrial Techbilt Settlements
Respondents sued for wrongful death damages based
on theories of negligence, negligence per se, and dangerous
condition of public and private property. Before trial, County of
Ventura was dismissed. State of California settled for $1.5
million, and the U-turn driver and the owner of Newcomb’s
vehicle settled for $115,000. Francisco’s Fruit Stand and MMFG,
LLC (the owner of the fruit stand parking lot) settled for
$825,000. Over appellants’ objection, the trial court found the
settlements were in good faith (Code Civ. Proc., § 877.6; Tech-
Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488,
506).
In Limine Order on Comparative Fault Evidence
Several motions in limine were argued the first day of
trial. The trial court ruled that appellants could not present
evidence on the comparative fault of the State of California, the
fruit stand, or the parking lot owner because appellants, in
responding to contention interrogatories, claimed the U-turn
driver was the sole cause of accident. The interrogatory answers
did not mention the State of California, the fruit stand, or the
parking lot owner even though the comparative fault of third
parties was alleged as affirmative defenses three and four.
Jury Instructions and Special Verdict
The jury was instructed to consider only the
comparative fault of the U-turn driver and appellants. The jury
park on the side of a highway in a non-emergency situation. If a
truck driver did that, the truck would be a “sitting duck.”
4
awarded $30 million wrongful death damages, finding the U-turn
driver 60 percent negligent and appellants 40 percent negligent.4
The trial court, in denying motions for new trial and judgment
notwithstanding the verdict, stated the in limine order was made
because appellants “sandbagged” respondents in discovery.
When appellants responded to contention interrogatories in 2016
they “point[ed] the[ir] finger[s] at Newcomb. . . . [¶] . . .
[N]otwithstanding several opportunities, [they] never pointed the
finger once at the State of California or MMFG or Francisco’s
Fruit, and . . . [laid] in the reeds for an extensive period of years
of litigation . . . without reopening discovery to supplement
responses . . . . [Y]ou might not have a duty to do it, but you
certainly ha[d] an opportunity to do it to prevent surprise . . . .
[¶] [¶] And you can’t under the rules of discovery, you can’t lay
in the reeds, say you’re not contending something, and then
change it all around at the last minute. It just doesn’t work like
that.”
Proposition 51 – the Universe of Tortfeasors
“Generally, a trial court’s ruling on an in limine
motion is reviewed for abuse of discretion. [Citation.] However,
when the issue is one of law, we exercise de novo review.
[Citation.]” (Condon-Johnson & Associates, Inc. v. Sacramento
Municipal Utility Dist. (2007) 149 Cal.App.4th 1384, 1392.) The
question here is whether the in limine order and instructions
violate Proposition 51 (Civ. Code, § 1431 et al.) which requires
4The trial court amended the $12 million judgment to add
$2.37 million prejudgment interest because appellants failed to
accept respondents’ $1 million pretrial statutory offer to settle
the case. (Code Civ. Proc., § 998.)
5
that the award for noneconomic damages be limited to the
proportionate fault of each tortfeasor. Pursuant to Proposition
51, the jury must apportion the fault of each tortfeasor, including
defendants who settle before trial. (Vollaro v. Lispi (2014) 224
Cal.App.4th 93, 100, fn. 5.) The jury considers “‘‘the relative
responsibility of various parties for an injury (whether their
responsibility for the injury rests on negligence, strict liability, or
other theories of responsibility), in order to arrive at an ‘equitable
apportionment or allocation of loss.’” [Citation.]’ [Citations.]”
(Pfeifer v. John Crame, Inc. (2013) 220 Cal.App.4th 1270, 1285.)
Here the jury awarded $30 million in damages but
was not permitted to consider the comparative fault of the
settling defendants, i.e., the State of California, the fruit stand,
and MMFG. Under Proposition 51 (Civ. Code, §§ 1431 to 1431.5),
appellants are “only responsible for [their] comparative
percentage of fault for the noneconomic damages . . . .” (Roslan v.
Permea, Inc. (1993) 17 Cal.App.4th 110, 112 (Roslan).) “[I]t is
error for a trial court not to allow the jury to assess the
comparative fault of defendants who settled before trial.
[Citation.] Likewise, it is error to exclude evidence of the
culpability of defendants who settled before trial to allow the jury
to make that assessment. (Citation.]” (Romine v. Johnson
Controls, Inc. (2014) 224 Cal.App.4th 990, 1011.) Although the
$30 million award was apportioned to reflect the comparative
fault of the U-turn driver, “it was not reduced by the comparative
fault of the [other] settling defendants. This error mandates
reversal.” (Roslan, supra, at p. 112.)
No Continuing Duty to Supplement Interrogatory Answers
Respondents argue that appellants were estopped to
assert the comparative fault of the settling defendants, by their
6
responses to the contention interrogatories. A party, however,
has no duty to amend or supplement his or her interrogatory
answers. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th
1315, 1328.) It is “‘urban legend’ that ‘a responding party has an
affirmative duty to supplement responses to interrogatories if
and when new information comes into that party’s
possession. . . .’ [Citation.]” (Browne v. Turner Construction
Co. (2005) 127 Cal.App.4th 1334, 1349.) Even if appellants
“violated a duty to supplement [their] responses it would not
ordinarily justify the exclusion of evidence in the absence of
a willful violation of an order for disclosure. [Citation.]” (Ibid;
see, e.g., Kuhns v. State of California (1992) 8 Cal.App.4th 982,
985 [state willfully refused to obey court orders compelling
discovery; trial court imposed an issue sanction on design
immunity].)
Respondents did not file a motion to compel further
discovery responses or a motion for an issue-evidence sanction,
and knew the comparative fault of the settling defendants was
the elephant in the room. The First Amended Complaint alleged
that the State of California, the fruit stand, and MMFG owned
and maintained a dangerous property condition that contributed
to the collision.5 Appellants alleged comparative fault as an
5 Appellants’ reliance on Jacobs v. Coldwell Banker
Residential Brokerage Co. (2017) 14 Cal.App.5th 438, is
misplaced. There, the complaint and plaintiff’s interrogatory
answers stated that Coldwell Banker was negligent in disclosing
the condition of a swimming pool diving board. Plaintiff/buyer
stood on the diving board to look over a fence and the diving
board collapsed, causing plaintiff to fall into the empty pool. (Id.
at pp. 440-441.) We affirmed the summary judgment on the
ground that “[p]laintiffs cannot rely on their unpled, undisclosed
7
affirmative defense and opposed the Tech-Bilt motions on the
ground that the settlements were grossly disproportionate to the
settling defendants’ comparative fault. Comparative fault was
discussed in the trial briefs and before trial. In opposing the fruit
stand’s and MMFG’s motions for summary judgment,
respondents argued that the parking lot was located “entirely
within the public right of way” and “[h]ardly a more dangerous
configuration can be conceived . . . .” Respondents claim they
were prejudiced by appellants’ terse discovery responses, but
settled with the fruit stand and parking lot owner for a large sum
of money well before trial, and for a reason. Respondents’ truck
expert (Lew Brill) said the parking lot was “a calamity of . . .
confusion . . . . [T]here’s a lot of cars in there, a lot of activity
that’s happening there.” Before the collision, there were near
misses involving vehicles leaving and entering the parking lot,
and the fruit stand was cited for violating road setback and
parking requirements. The State was aware of the problem. It
demolished the fruit stand in 1993 to widen the highway and
staked out the place where the fruit stand and parking lot were
rebuilt, i.e., in the public right of way.
Respondents argue that contention interrogatories
are necessary to “‘set at rest’” issues not genuinely disputed.
(Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d
276, 281.) No published opinion has stated that terse responses
to contention interrogatories trump a Proposition 51
proportionate fault defense. Before an issue-evidence preclusion
. . . theory that Coldwell is liable for failing to remedy, warn, or
otherwise protect Jacques from the dangerous condition of the
empty pool.” (Id. at pp. 445-446.)
8
order is made, there must be a bad faith and willful violation of
an existing discovery order. Johnson v. Pratt & Whitney Canada,
Inc. (1994) 28 Cal.App.4th 613 illustrates the principle. There,
Pratt failed to respond to 50 court-ordered discovery requests in a
wrongful death action. The trial court struck Pratt’s answer on
liability (id. at p. 621) and granted summary adjudication on
liability based on an earlier issue-determination and evidence-
preclusion order. (Id. at pp. 621-622.) On the first day of trial,
the trial court granted a motion in limine, prohibiting Pratt from
presenting evidence of third party comparative fault. The jury
awarded $4.8 million damages. The Court of Appeal affirmed,
holding that Civil Code section 1431.2 could not be used as a
shield to protect a defendant from the consequences of a flagrant
discovery dereliction and reward Pratt for its bad faith discovery
tactics. (Johnson, supra, at p. 627.)
Unlike Johnson, respondents knew the comparative
fault of the settling defendants was a contested issue but did not
ask for supplemental interrogatory answers, propound requests
for admissions, or file a motion to impose an issue-evidence
sanction. This is significant. Unless there has been “a violation
of an order compelling an answer or further answer, the evidence
sanction may only be imposed where the answer given is willfully
false. The simple failure to answer, or the giving of an evasive
answer, requires the propounding party to pursue an order
compelling an answer or further answer—otherwise the right to
an answer or further answer is waived and an evidence sanction
is not available.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316,
334.)
“What in limine motions are not designed to do is to
replace the dispositive motions prescribed by the Code
9
of Civil Procedure.” (Amtower v. Photon Dynamics, Inc. (2008)
158 Cal.App.4th 1582, 1593.) “The better practice in nearly every
case is to afford the litigant the protections provided by trial or by
the statutory processes.” (Id. at p. 1588; Finley, Cal. Motions in
Limine (The Rutter Group 2019) ¶ 1:1, p. 1-4.) Here, the in
limine order infringed on appellants’ statutory right to have the
jury determine the comparative fault of the other tortfeasors.
The jury was instructed to consider the comparative fault of the
U-turn driver and appellants but no one else. The trial court
said: “I got to tell you, it’s a big tag item for me to tell somebody
that you can’t present evidence with regard to comparative fault.”
We are compelled to reverse. “Each defendant shall be liable only
for the amount of noneconomic damages allocated to that
defendant in direct proportion to that defendant’s percentage of
fault, and a separate judgment shall be rendered against that
defendant for that amount.” (Civ. Code, § 1431.2, subd. (a).)
Golden Rule Argument and Ad Hominem Attacks
During final argument, respondents’ counsel told the
jury that counsel is “not being straight with you,” and this is “not
the time to make up lies and to try to cheat your way to justice.”
Appellants and their attorney spent the last five years “actively
evading responsibility. And not just actively evading it, but [by]
lying.” “I called them lies in the beginning, but . . . they have
blown into even bigger things because it is a fraud.”
Respondents’ attorney asked the jurors to “[j]ust
imagine that is your daughter,” and to image “that constant love
and connection between you and your daughter,” and that “your
daughter is taken away.” Counsel argued that Jocelyne was like
a hundred-million-dollar Picasso painting and to “[i]magine you
10
have this Picasso of a human being.” “She doesn’t exist
anymore.”
After the jury returned the $30 million verdict,
appellants moved for new trial based on, among other things,
excessive damages. Denying the motion, the trial court
acknowledged “[i]t’s inappropriate to . . . make an ad hominem
attack against the other lawyer for lying, and then to talk about
[how] it’s somehow not okay to try the case and to not settle it
earlier.” The court found the issue was waived because no
objection was made and attorney misconduct “was a tangential
argument related to excessive damages.” “‘Moreover, even if
[appellants] had not waived their objections to the comments of
[respondents’] counsel in closing argument, the Court finds that
any such comments could not have been prejudicial to this case.’”
The $30 million verdict is so large that it shocks the
conscience and suggests passion or prejudice on the part of the
jury. (Burchell v. Faculty Physicians & Surgeons etc. (2020) 54
Cal.App.5th 515, 527.) Jocelyne lived at home, was not
employed, was contemplating marriage, and was still attending
fashion design school. “We may consider not only the amount of
the award, but also other ‘“indications in the record that the fact
finder was influenced by improper considerations,”’ such as
‘inflammatory evidence, misleading jury instructions, improper
argument by counsel, or other misconduct.’ [Citation.]” (Ibid.)
Each case must be decided on its own facts and circumstances.
(Ibid.)
Here, the Golden Rule argument and ad hominem
attacks on defense counsel were designed to, and did, impugn the
integrity of appellants’ trial counsel. Cases should be decided
upon the facts and the law only. Defense counsel did not lie and
11
did not commit a fraud by exercising the right to trial. “You can’t
stone him to death” but you can “make him pay.” The inference
was that appellants’ failure to settle the case had caused
Jocelyne’s parents grief or sorrow, none of which is recoverable in
a wrongful death action. (Code Civ. Proc., § 377.61; Krouse v.
Graham (1977) 19 Cal.3d 59, 69.)
“[E]ven in the absence of an objection and request for
admonition, where there are flagrant and repeated instances of
misconduct, an appellate court cannot refuse to recognize the
misconduct.” (Simmons v. Southern Pac. Transportation
Co. (1976) 62 Cal.App.3d 341, 355 (Simmons).) When the
attorney misconduct is egregious and a motion for new trial has
been denied, the deferential abuse of discretion standard of
review does not apply to the question of prejudice. (Los Angeles
v. Decker (1977) 18 Cal.3d 860, 872.) Prejudice exists if it is
reasonably probable that the jury would have arrived at a verdict
more favorable to the moving party in the absence of the
irregularity or error. (Ibid.; see Garden Grove School District v.
Hendler (1965) 63 Cal.2d 141, 143 [prejudicial misconduct where
plaintiff’s attorney resorted to insulting and derogatory
characterizations of defendants, and impugned the motives and
purpose of defendants]; Simmons, supra, at pp. 351-357 [counsel
accused defendant of cheating, stealing, and perjury]; Kenworthy
v. State of California (1965) 236 Cal.App.2d 378, 397-399
[misconduct “was a deliberate attempt to administer poison, no
single dose of which was lethal but with an accumulative effect
inevitable and realized”].) “The question is not whether the
award is a reasonable one, but whether it is reasonable to
conclude that a verdict more favorable to defendants would have
12
been reached but for the error. (Cal. Const., art. VI, § [13].)”
(Garden Grove School Dist., supra, at p. 144.)
We have reviewed the record and conclude the
misconduct was too serious to be cured by an objection and
admonition. (Simmons, supra, 62 Cal.App.3d at p. 355.) The
record leaves no doubt it was carefully contrived and calculated
to arouse and inflame the jury to award a large verdict. (See
Love v. Wolf (1964) 226 Cal.App.2d 378, 394.) The Golden Rule
argument that the jurors should “imagine” it was their daughter
that was taken away, and that appellants’ trial attorney had lied
and delayed settlement to commit a fraud was prejudicial and
requires reversal. “The 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. [Citation.]” (Martinez
v. Department of Transportation (2015) 238 Cal.App.4th 559,
566.)
Appellants urge us to reverse the judgment as to both
liability and damages, but the jury’s finding of liability is
supported by substantial evidence. Respondents’ expert witness
opined that Deese fell below the standard of care when, having
determined no emergency existed, he left the truck unattended
on the side of the highway. Appellants’ trucking expert conceded
the point when he testified, “You’re not supposed to park on the
shoulder of a highway unless you have an emergency.” Deese
himself admitted there was no emergency when he left the truck
to buy strawberries and that his conduct in leaving the truck
parked on the side of the highway breached the standard of care.
This is substantial evidence from which a reasonable jury could
find that appellants bear some portion of the fault for these tragic
events.
13
The error requiring reversal here is with regard to
the judgment on damages. First, the trial court erroneously
excluded evidence of the comparative fault of the settling
defendants. Second, no substantial evidence appears to support
the amount of the damages award, an amount that shocks the
conscience and appears to have been influenced by the
misconduct and improper argument of respondents’ counsel.
Under these circumstances, the appropriate course is to reverse
the judgment with respect to the award of damages and to
remand for a new trial to determine both the amount of the
damages award and its apportionment based on the comparative
fault of the universe of tortfeasors. (See, e.g., DaFonte, supra, 2
Cal.4th at p. 603; Corenbaum v. Lampkin (2013) 215 Cal.App.4th
1308, 1334, fn.16; Roslan, supra, 17 Cal.App.4th at p. 113.)
Disposition
The judgment is reversed as to the award of damages
and the matter is remanded with directions to conduct a new
trial limited to determining the amount of the damages award
and its apportionment among all defendants, including those who
settled before trial. Appellants are awarded costs on appeal.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
14
Matthew P. Guasco, Judge
Superior Court County of Ventura
______________________________
Clark Hill, Pamela A. Palmer, David L. Brandon and
Ryan C. McKim; Gutierrez, Preciado & House, Arthur Preciado
and Arthur Javier for Defendants and Appellants.
The Homampour Law Firm, Arash Homampour and
Scott E. Boyer; The Ehrlich Law Firm and Jeffrey I. Ehrlich for
Plaintiffs and Respondent.