Sob Stories and Accomodating Experts' Vacations Do Not Merit a New Trial

Rayii v. Gatica, No. B236626 (D2d3 Aug. 20, 2013)

The court of appeal affirms the denial of plaintiff’s new trial and JNOV motions after she obtained a small verdict in a car crash case. Most of the issues addressed are weight of proof issues that are not germane to the procedural concerns addressed in this publication. The opinion does, however, addresses a few procedural issues.

First, the plaintiff claimed that the defense attorney committed misconduct when, in his opening statement, he made a brief reference to the poor economic health of the defendant’s business. Plaintiff had previously moved in limine to preclude such references, and the defendant agreed to not to broach the subject. But plaintiff did not object at argument. And even when plaintiff’s counsel raised the issue the following day, he did not ask for a curative instruction.

The court of appeal reviewed the rules for preserving objections to attorney misconduct at trial. To wit, a failure to object and request a curative instruction waives the objection unless: (1) the misconduct was so prejudicial that a curative instruction would be impossible; (2) an objection would b e futile; or (3) the court overruled the objection before an instruction could be requested. As the plaintiff did not timely object, and even when the issue was raised the next day, her attorney did not request an instruction, the court held that any claim of misconduct had been waived.

Second, plaintiff claimed that she was entitled to a new trial as the result of prejudice causes by the court’s permitting the calling of three defense expert witnesses out of order in order to accommodate their vacation schedules. Noting that Code of Civil Procedure § 607 and Evidence Code § 320 give the trial court discretion to regulate the order of proof, the court held that “the trial court acted within its discretion by allowing the witnesses to testify out of order so as to avoid having to continue the trial date, force the witnesses to cancel their vacation plans or forego their testimony.” 

Affirmed.