Thursday, January 30, 2014

When up Against a Pro Se, the Record Is Your Co-Defendant

Petrosyan v. Prince Corp., No. B244274 (D2d8 Jan. 29, 2014)

This case involves a jury trial in a wage and hour case litigated by a non-English-speaking pro se through an interpreter. The case was a trial de novo after the Labor Board awarded plaintiff only $12,000 on his claim. Before the trial, defendant won a motion in limine, precluding plaintiff from mentioning other plaintiffs’ cases or settlements involving defendants
in front of the jury. Plaintiff nevertheless mentioned those cases in his opening statement. The court declared a mistrial. For trial #2, defendant made the same motion, which the court again granted, telling plaintiff: Don’t do what you did last time. In the second trial, during plaintiff’s direct exam of himself, he mentioned the Labor Board award he was appealing. The defendant’s lawyer objected about the reference to the prior case, but admitted that he supposed he should have specifically put that in his motion in limine. The court ruled that it was there in spirit, granted another mistrial and dismissed the case with prejudice for plaintiff’s misconduct. Plaintiff—now represented by a partner at Steptoe & Johnson—appealed. Defendant failed to file a respondent’s brief. The court of appeal reverses, holding that the trial court needed to be clearer with the pro se plaintiff. The in limine ruling re other cases did not necessarily apply to Labor Board proceeding in the same case. Defendant tacitly admitted as much when its attorney said he should have put that in his motion. Since the order wasn’t clear, plaintiff didnt commit misconduct meriting terminating sanctions by failing to comply with it. And in any event, plaintiff’s reference to the Labor Board case was not so prejudicial that it could not have been cured with a jury admonition. So there was no reason to order a second mistrial in the first place.

Reversed and remanded.

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