Tuesday, July 28, 2015

Reverend Unemployed Nazi Biker v. CALDOT, Fully Immune, but Poor

Martinez v. CALDOT, No. G048375 (D4d3 Jul. 7, 2015)

Except in the part at the beginning or end where counsel are listed, lawyers mostly don’t like to see their names in appellate opinions. Especially government lawyers. And especially in published opinions. For good reason. When it happens, somebody is usually in trouble.

CALDOT attorney Karen Bilotti is in big trouble. Justice Bedsworth’s opinion sets it up nicely:
Generally, what happened is this: Defendant’s attorney Karen Bilotti would ask a question in clear violation of the trial court’s in limine orders. The question would usually have the effect of gratuitously besmirching the character of plaintiff Donn Martinez. An objection from Martinez’s counsel would follow. The trial court would sustain the objection. Bilotti would then ask the same question again. The trial court would sustain the objection again. And the same thing would happen again. And again. And again. And again.
Plaintiff in this case is a biker. He’s in a motorcycle gang. Albeit an evangelical Christian one where he is a reverend. His gang’s logo depicts a skull with a mustache wearing sunglasses and a helmet of the Sergeant Shultz variety. His motorcycle’s license plate is “THE EVL 1.” (Presumably, Plaintiff is the good one.)

While riding his bike in a funeral procession through the notorious Orange Crush freeway interchange near Santa Ana, Plaintiff ran over a low curb and wrecked. He got hurt. He sued CALDOT for maintaining a dangerous condition on public property. Before trial, Plaintiff won several motions in limine, ordering CALTRANS to refrain from putting on evidence about motorcycle gangs, their insignia, Plaintiff’s 2003 termination from a job, and the state’s budgetary issues.

Ms. Bilotti got off to a bad start when she told the jury during opening that CALTRANS is immune from all claims. Twice. (Not true, hence the trial.) She also misstated the law of negligence, and—in clear violation of an in limine ruling—told the jury that the state didn’t have enough money to fix the dangerous curb. Then, during her cross of plaintiff, she asked about Plaintiff’s 2003 termination ten different times, and twelve times more when she crossed plaintiff’s wife.

But then she really got going. At the end of the cross of the wife, Bilotti tried to display to the jury picture of plaintiff’s motorcycle on which the gang’s logo could be seen. The judge stopped her and said he would delay resolving it issue until the next break. Instead, Bilotti just asked the wife if she knew that at the time of the accident, plaintiff’s motorcycle “had a skull picture on it wearing a Nazi helmet[?]” (Oh, oh! Goodwin’s law!)

In closing, Plaintiff’s lawyer felt the need to deny the Nazism association. To which Bilotti responded by denying she was calling plaintiff a Nazi, all while using the word “Nazi” in conjunction with Plaintiff’s name, over and over again. She also made a number of other improper statements that misstated the law and reiterated that the broke state would have to pick up the tab if Plaintiff won.
All through this the trial judge dutifully sustained Plaintiff’s objections. But that’s all he did. No sanctions. No yelling. No admonitions to the jury. Mistrial denied.
Defense verdict. Jury said no to the first question on the verdict form

 and proceeded no further.

By now, we can all guess that this is a reversal. The court finds that Bilotti committed “truly egregious, indisputable instances of misconduct.”

Running through the factors in Sabella v. Southern Pacific Co., 70 Cal. 2d 311, 320 (1969) the court also finds all the hallmarks of prejudice. The misconduct was egregious and took advantage of the trial judge’s even temperament. The trial judge let her get away with ignoring his rulings. The character attacks, which painted the picture of plaintiff as a “low-life biker with an affinity for ‘Nazi’ paraphernalia,” likely focused the jury on character and away from the merits. And the judge did not admonish the jury or otherwise penalize the misconduct. So reversal was required.

Reversed. With instructions to the clerk to mail the opinion to the State Bar, notifying it that the reversal was due entirely to attorney misconduct. See Cal. Bus. & Prof. Code § 6086.7.

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