Outrageous Misconduct

Pope v. Babick, No. G049629 (D4d3 Sept. 18, 2014)

The trial court in this car accident case granted a motion in limine. It ordered that unless defendants could establish foundation outside the jury’s presence, defendants could not elicit opinion testimony on causation issues from the CHP officers who responded to the scene of the accident. But defense counsel asked anyway. Before plaintiff could get an objection out, the officer ascribed fault to a party who had previously settled, not the current defendant. Plaintiff’s objected and the court struck the testimony. The cat, however, was out of the bag; the bell rung; Pandora’s box opened; the genie out of the bottle. Elvis had left building. But, said the trial judge, not enough to get a mistrial. A $500 sanction and a reasonably harsh curative instruction avoided any prejudice to the plaintiff. Plaintiff lost the trial and reiterated the misconduct issue in a new trial motion. Plaintiff appealed.

After disposing of the plaintiff’s appeal on lack of substantial evidence by predictably affirming based on the standard of review, the court of appeal addressed the misconduct claim. It admonishes defendant’s attorney (by name) for “outrageous misconduct.” But it too declines to upset the verdict based on the deferential standard of review that applies to denied mistrials. The trial court here provided a thorough explanation of its reasons to limit its sanctions to a monetary penalty and jury instruction—which were quite helpful, although not required. The court was convinced that the trial court’s actions were within the valid scope of its discretion. Similarly so on the new trial motion, which is also subject to deferential review.

Thus, after reiterating that it “strongly disapprove[s] of [the attorney’s] behavior” and that “[i]f it were up to us, he would have been sanctioned far more than $500” the court nonetheless finds that the trial court did not abuse its discretion. The court further notes that “[b]y stating our position in a published opinion, we believe we have satisfied our obligation to take appropriate corrective action as required by Canon 3D(2) of the California Code of Judicial Ethics.” And for good measure, it holds that “[i]n the interests of justice, each party is to bear its own costs on appeal.”

Affirmed.