5th No. F067460
IN THE
COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE FIFTH APPELLATE DISTRICT
______
JOSEPH C. HUDSON, et al.,
Plaintiffs, Respondents and Cross-Appellants
v.
COUNTY OF FRESNO,
Defendant, Appellant and Cross-Respondent
Appeal from the Superior Court of California, County of Fresno
Hon. M. Bruce Smith; Case No. 09CECG 03295 MBS
______
ANSWER TO AMICUS CURIAE BRIEF OF ASSOCIATION OF SOUTHERN CALIFORNIA DEFENSE COUNSEL
______
Warren R. Paboojian – 128462 Lynne Thaxter Brown – 104958
Jason S. Bell – 213234 Stephanie Hamilton Borchers --
*Baradat & Paboojian, Inc. 192172
720 West Alluvial Avenue Dowling Aaron Incorporated
Fresno, California 93711 8080 N. Palm Ave., Third Floor
Telephone: (559) 431-5366 P.O. Box 28902
Facsimile: (559) 431-1702 Fresno, California 93729-8902
Telephone: (559) 432-4500
Facsimile: (559) 432-4590
James M. Makasian – 71791
1327 N Street
Fresno, California 93721
Telephone: (559) 442-4212
Facsimile: (559) 445-0328
Attorneys for Plaintiffs/Respondents/Cross-Appellants
JOSEPH C. HUDSON and JERVON IRELAND
4
TABLE OF CONTENTS
INTRODUCTION 1
ARGUMENT 1
A. The County Forfeited Its Challenge to the Alleged “Golden Rule” Violation by Failing to Object 1
B. In Any Event, the Tardy Amicus Brief Adds Nothing 4
C. Counsel Did Not Ask the Jury to “Send a Message” and Any Danger That He May Have Was Cured by Re-Instructing the Jury on Punitive Damages 5
CONCLUSION 6
TABLE OF AUTHORITIES
Cases
Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780 1, 2
Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174 1, 2
Horn v. Atchison, T. &S.F.R. Co. (1964) 61 Cal.2d 602 2
People ex rel. Dept. of Public Works v. Graziadio (1964)
231 Cal.App.2d 525 2
People v. Pitts (1990) 223 Cal.App.3d 606 2
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INTRODUCTION
The late-filed amicus curiae brief[1] of the Association of Southern California Defense Counsel (ASCDC) adds nothing new and provides no new or different grounds to support reversal. The brief merely repeats the same meritless arguments regarding alleged misconduct by counsel during closing argument that have already been advanced by appellant County of Fresno. As plaintiffs explained in their respondents’ brief, the County forfeited its challenge by failing to timely object below, and in any event, there was no misconduct during closing argument.
ARGUMENT
A. The County Forfeited Its Challenge to the Alleged “Golden Rule” Violation by Failing to Object
ASCDC’s amicus curiae brief raises the same alleged misconduct by plaintiffs’ attorney during closing argument as the County’s opening and reply briefs. Like the County, ASCDC contends plaintiffs’ attorneys made “Golden Rule” arguments to the jury by focusing the jury on the safety of the “community” and “our children,” and it cites a host of cases holding that appealing to the jurors’ self-interest during closing argument is improper. (ACB 12; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 796; Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174, 179; People ex rel. Dept. of Public Works v. Graziadio (1964) 231 Cal.App.2d 525, 533-534; People v. Pitts (1990) 223 Cal.App.3d 606, 696.)
In all of the cases ASCDC cites on this point, however, the party who challenged the improper argument raised the objection in the trial court. (Cassim v. Allstate Ins. Co, supra, 33 Cal.App.4th at 796; Du Jardin v. City of Oxnard, supra, 38 Cal.App.4th at 178-179; People ex rel. Dept. of Public Works v. Graziadio, supra, 231 Cal.App.2d at 533; People v. Pitts, supra, 223 Cal.App.3d at 695.)
Indeed, it is well established that “to preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must be lodged at trial. In addition to objecting, a litigant faced with opposing counsel’s misconduct must also move for a mistrial or seek a curative admonition unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice.” (Cassim v. Allstate Ins. Co., supra, 33 Cal.App.4th at 795 [internal quotes and citations omitted]; see also Horn v. Atchison, T. &S.F.R. Co. (1964) 61 Cal.2d 602, 610 [misconduct claim entitled to no consideration on appeal without timely and proper objection and request that jury be admonished].)
As discussed in the respondents’ brief, the County’s failure to make a proper and timely objection to plaintiffs’ attorneys’ alleged “Golden Rule” violation and request an admonition and/or move for mistrial forfeits the challenge on appeal. (RB 72.)
The amicus curiae brief of ASCDC completely ignores the County’s forfeiture of the alleged “Golden Rule” violation. The County states in its reply brief that “objections were raised to the arguments … and the matter was discussed amongst counsel and the court” (ARB 23), but this is not true. The County never objected at any time to the alleged “Golden Rule” violation. The portions of the record the County cites in its reply brief show that the objections that were raised, the matters that were discussed, and the admonitions that the County requested related to other issues, not the alleged “Golden Rule” violation. (17 RT 4280:12-4284:7, 4300:22-4308:17.)
The County further contends in its reply brief that its failure to object should not be deemed waiver since objecting would have “overemphasized the objectionable material and … alienated the jury.” (ARB 23-24.) But even if the County did not want to risk alienating the jury by objecting during counsels’ oral argument, it could have raised the alleged violation and requested an admonition outside the jury’s presence, just as it did with respect to the other issues.
The County’s final contention that the alleged “Golden Rule” violation was so “flagrant and repeated” that this Court cannot refuse to recognize it (ARB 24) is not simply supported by the record. Contrary to the contention of the County and amicus, while plaintiffs’ attorneys mentioned the safety of “the community” and “our children” during their oral arguments, this was by no means the focus of the arguments. Both attorneys gave impassioned and lengthy oral arguments to the jury, and the comments to which the County now objects played a small part in the overall scheme of things. This is undoubtedly why the County never raised the “Golden Rule” issue during trial, or even in its motion for new trial.[2]
Because the County failed to make a proper and timely objection that plaintiffs’ attorneys violated the “Golden Rule” during closing argument, the issue is forfeited.
B. In Any Event, the Tardy Amicus Brief Adds Nothing
Even if the County had not forfeited this issue, ASCDC’s amicus brief adds nothing and provides no new or different grounds to support reversal. ASCDC characterizes the Reptile Theory as “merely another version of the prohibited Golden Rule argument,” and contends argument based on the Reptile Theory is misconduct “for the same reasons” as Golden Rule argument. (ACB 5, 13, 14.) As discussed in the respondents’ brief, however, plaintiffs’ counsels’ argument did not violate the Golden Rule or constitute misconduct. (RB 72-73.)
Nor is there any support for ASCDC’s concerns that the Reptile Theory is “expanding.” (ACB 10.) Amicus cites closing arguments in a Superior Court case in Orange County and one in Los Angeles County as evidence that the “campaign to get the message out is working” (ACB 10-11), but it provides no support that the juries’ awards in those cases were in fact as represented. Moreover, even if the juries did award the amounts represented, there is no evidence that they did so because they were influenced by counsels’ alleged Reptile Theory arguments.
Plaintiffs also note that after thoroughly researching the issue, they can find no reference to the alleged dangers of the Reptile Theory, or even to the theory itself, in any California state or federal case, whether published or unpublished, or indeed, in any published or unpublished state or federal case anywhere in the country. Likewise, plaintiffs found no reference to the Reptile Theory in any California state or federal briefs or motions in pending or decided cases. Thus, the dangers ASCDC fears from “expansion” of the Reptile Theory are minimal, if not completely unfounded.
C. Counsel Did Not Ask the Jury to “Send a Message” and Any Danger That He May Have Was Cured by Re-Instructing the Jury on Punitive Damages
Like the County, ASCDC also contends that plaintiffs’ attorney argued the jury should “send a message” to the County. (ACB 16.) As explained in the respondents’ brief, at no time did plaintiffs’ attorney ever tell the jury it should “send a message.” Plaintiffs’ attorney did not argue or insinuate that the County should be punished for its acts or failures to act; rather, counsel argued that the County should be held “accountable.” (17 RT 4274:1-5.) ASCDC and the County cite no authority holding that an argument that a public entity defendant should be held “accountable” is improper or prejudicial, or invites the jury to award punitive damages.
In any event, the trial court properly addressed whatever concerns the County may have had regarding punitive damages by re-instructing the jury regarding punitive damages after plaintiffs’ rebuttal argument. (17 RT 4404:18-26.)
CONCLUSION
Nothing in ASCDC’s amicus brief provides a basis to reverse the verdict rendered after a lengthy, well-prepared, and emotional trial. ASCDC also cannot save the County from its failure to object to the alleged misconduct at trial.
With the modification requested in plaintiffs’ cross-appeal, the jury verdict and judgment should be affirmed.
Dated: January 29, 2017 BARADAT & PABOOJIAN, INC.
By: ______
Warren R. Paboojian
Jason S. Bell
Attorneys for Plaintiffs/
Respondents/Cross-Appellants
JOSEPH C. HUDSON and JERVON IRELAND
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CERTIFICATE OF WORD COUNT
(Cal. Rules of Court, Rule 14(c)(1))
The text in this Appellant’s Reply Brief is proportionally spaced. The typeface is Times New Roman, 13 point. The word count generated by the Microsoft Word© word processing program used to prepare this Brief, for the portions subject to the restrictions of California Rules of Court, Rule 14(c)(1), is 1,297.
Dated: January 29, 2017 BARADAT & PABOOJIAN, INC.
By: ______
Warren R. Paboojian
Jason S. Bell
Attorneys for Plaintiffs/
Respondents/Cross-Appellants
JOSEPH C. HUDSON and JERVON IRELAND
4
[1] Abbreviated in this answer as “ACB.”
[2] The County moved for a new trial based on alleged misconduct during oral argument regarding other issues but no mention is made of the alleged “Golden Rule” violation. (5 CT 1308:23-1312:10.)