Collection of Articles by Judge Judy Holzer Hersher by Sacramento County Bar Association

2008 - 2015

SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE

Collection of Articles by Judge Judy Holzer Hersher

www.sacbar.org

Photo by Mary J. Burroughs

2008-2015

www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

CONTENTS

S A C R A M E N T O C O U N T Y B A R A S S O C I AT I O N M A G A Z I N E

Collection of Articles by Judge Judy Holzer Hersher

2008 - 2015

The articles reproduced in this compilation represent the thoughts and opinions of their author, the Honorable Judy Holzer Hersher, Judge, Sacramento County Superior Court, and should not be considered court policy or the opinion of other judges. Comments should be addressed to HersherJ@saccourt.ca.gov. These articles were originally published in the Sacramento Lawyer and are the copyrighted property of the Sacramento County Bar Association. No article shall be reproduced, copied, stored in a retrieval system, or otherwise transmitted in any form without the written permission of the Sacramento County Bar Association. To request permission contact: editor@sacbar.org. WARNING: No authority cited in any article in this compilation should be cited without first ensuring that it is still reliable precedent, has not been superceded by changes in California codes, or otherwise overruled, amended, distinguished, or altered. Judge Hersher and the Editor-in-Chief of the Sacramento Lawyer express their thanks to people who made this compilation possible, Judge Hersher’s courtroom attendant, Rachel Sanchez Jacobo, and the staff of the SCBA, including Executive Director Mary Burroughs.

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The Importance of Direct Examination in Modern Day Civil Jury Trials.........................................................September/October 2008

Jurors Asking Questions in the Courtroom.............................................................................................. November/December 2008

Using Depositions in a Civil Jury Trial..............................................................................................................January/February 2009

Civil Case Management Orders and the New Trial Setting Program: Getting it Right the First Time.......................... March/April 2009

Civil Jury Instructions Part I - Untimely Submission by Trial Counsel an Oversight with Significant Consequences.........May/June 2009

Civil Jury Instructions Part II - Argumentative Instructions......................................................................................... July/August 2009

Civil Jury Instructions Part III - Juror Questions during Deliberations ...........................................................September/October 2009

Juror Nullification in the Civil Trial: Power without Right.......................................................................... November/December 2009

Cross Examination: Crowning Glory or Calamity.............................................................................................January/February 2010

Tough Economic Times Make for Reluctant Jurors: Making Jury Service Work for Everyone................................................................................................................... March/April 2010

The Privilege against Self–Incrimination: Immunity Subject to Change at Trial..............................................................May/June 2010

“With All Due Respect”… Not Really...................................................................................................................... July/August 2010

A Look at the Accomplishments of Judge Loren E. McMaster.....................................................................September/October 2010

Prevailing Party Determinations Post–Goodman v. Lozano, a Cautionary Tale for Plaintiffs and Their Lawyers.................................................................................... November/December 2010

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“Reliable Authority” and Cross-Examination of Experts under California Evidence Code Section 721(b)(3): What We Have (Not) Learned.........................................................................................................................January/February 2011

Writ Practice in the Superior Court: Where Medieval History Illuminates the Law..................................................... March/April 2011

Judicial Estoppel: The Marriage of Court and Litigant that Demands Integrity..............................................................May/June 2011

“Don’t Spit on Me” and Other Words of Wisdom from 50 Years of Court Reporting............................................... July/August 2011

The Pitfalls of Neglecting a Court Approved Settlement in a Minor’s Case..................................................September/October 2011

“Out of the mouths of babes” ... Child Witnesses in the Courtroom....................................................... November/December 2011

The Courtroom as Arena – Positioning Is Everything ............................................................................................... March/April 2012

Insufficiency of the Evidence and the 13th Juror: Motions in Support or Opposition to a New Trial..............................May/June 2012

“Blowing Hot and Cold” in Pleadings: A Risky Business at Trial................................................................................ July/August 2012

“The Cat’s Paw,” “Me too,” and the “Stray Remarks” Doctrines: Admissible Evidence in Today’s Employment Trials.......................................................................................September/October 2012

“Technology in the Courtroom: Should the Prevailing or Losing Party Pay?”........................................... November/December 2012

State of California v. Continental Ins. Co., et al., and the All Sums with Stacking Rule: An Insurance Decision with Broad Implications...............................................................................................January/February 2013

Computer Animation Evidence in Jury Trials............................................................................................................ March/April 2013

“Gatekeepers:” A Dramatic Analogy Between Expert Testimony and the Movie Ghostbusters.....................................May/June 2013

Reduction to Present Cash Value: Whose Burden Is It?............................................................................................ July/August 2013

The Internet and Misbehaving Jurors: What Price Justice? ..........................................................................September/October 2013

Howell v. Hamilton Meats & Provisions, Inc., and Corenbaum v. Lampkin: Examining the Policies behind the Decisions and their Future Impact....................................................... November/December 2013

Setting the Number of Peremptory Challenges in the Simple and Complex Civil Jury Trial: Part Statute, Trial Strategy, and Discretion......................................................................................................January/February 2014

Poet Robert Frost and the California Legislature Agree: Good Fences Make Good Neighbors .................................. March/April 2014

102 The Primary Right Doctrine and Duplicative Damage Awards: Avoiding Reduction or Reversal on Appeal ....................May/June 2014 106 Settlement Demands in Excess Available Insurance: Good or Bad Faith under Code of Civil Procedure Section 998? .................................................................September/October 2014 110 Posting Jury Fees by Sides: The Impact of Changes to Code of Civil Procedure Section 631 on Last Minute Motions Affecting the Right to a Jury Trial............................................................................ November/December 2014 114 The Demise of “Camping Rights” (Unlimithed Jury Time) in Civil Trails ..........................................................January/February 2015

Litigation

View From The Civil Trial Bench The Importance of Direct Examination in Modern Day Civil Jury Trials

he Sacramento County Superior Court inaugurated its Civil Trial Division in January of 2006. With the internal exchange of information on jury trial outcomes, settlements and difficult discovery matters, the civil trial bench is in a position to offer guidance to Sacramento County litigants and their counsel. My goal is to share some of these perspectives with you, both practical and legal, through a series of articles over the next several months. The articles represent the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. In this first article, I offer personal observations on the importance of allowing the “voice” of witnesses to be heard, for better or for worse, and the importance of direct examination with our information saturated juries. In subsequent articles, I will look at the operation of the Case Management Program in Department 45; the most abused and least understood evidentiary objections I've observed in trials; civil jury selection,

By Judge Judy Holzer Hersher

including the use of special questionnaires and peremptory challenges; juror questions during trial; motions in limine; writs; jury polling; and the use and abuse of jury instructions. Comments on the published articles and suggestions for future articles are welcome and should be addressed to hershej@saccourt.com. The life blood of a jury trial is the question and answer. It is the method by which facts and impressions pulse from attorneys to witnesses to jurors and, with the advent of jurors asking questions, from the jurors back to the witnesses and the attorneys. It is this “pulse” that Evidence Code sections 760 - 764 (Method and Scope of Examination During Trial) addresses. Ask an attorney what the difference is between a question posed on direct examination versus cross-examination, and she or he will most likely respond that you can lead a witness on the later, but not the former. And there appears to be a

Paul S. Hokokian, Esq. Mr. Hokokian, former chair of the State Bar's Regulation, Admission and Discipline Committee, represents lawyers facing State Bar discipline. He will also consult on ethics. Mark Twain: “The man who represents himself has a fool for a lawyer.” Paul will provide you the dedicated, diligent attention to preserve, protect your Bar Card and maintain your professional reputation. Paul will schedule evening or Saturday appointments in his Sacramento office to accommodate your professional obligations.

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2008-2015

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widely held belief that cross-examination by leading questions is the crowning moment in a jury trial. I offer for consideration, however, that a well-paced direct examination, even of an adverse witness, is not only just as important but may be more important today than in the past. Regardless of age, ethnicity or background, jurors today exhibit a growing sophistication and use of enhanced information transmission. This includes email, computer video, text messaging and the internet. In short, they are programmed to receive “instant” communication by text or phone or computer messaging. The same is true for comprehensive world news. One need only read the most recent revision to California Civil Jury Instruction 100, “Preliminary Admonitions,” to see that Courts are aware of this phenomenon. The following language has been added to the instruction as of December 2007: “…Do not post any information about the trial or your jury service on the Internet in any form. Do not send or accept any messages, including e-mail or text messages, to or from anyone concerning the trial or your service…” As our jurors' life experiences and expectations have changed, so too have their expectations of jury trials. They want a well-paced presentation of the facts, and they are visibly impatient with duplicative evidence. At first blush this might seem to argue in favor of more leading questions. After all, leading a witness is often an efficient way to get relevant information in front of the jury in a hurry. However, there is a danger in too much leading. Trial attorneys know that leading questions are generally reserved for an adverse or hostile witness, as they offer the response the asking party wants in evidence, or because a “yes” or “no” answer impeaches a witness's prior testimony. (Evidence Code § 764) Some are aware that you can lead an expert--even their own expert--because the law assumes that an expert cannot be lead to misstate his or her opinion. (People v. Campbell (1965) 233 Cal.App.2d 38, 44; Chula v. Superior Court (1952) 109 Cal. App. 2d 24.) A fair number of attorneys also use leading questions with their own witnesses. Some attorneys seem to determinedly avoid direct questions with their key witnesses and the opposing side does not object. There may be any number of reasons why this is done with one's own witness: establishing foundation, speed, fear the witness might not get it right, or concern about exactly what the witness may say or forget to say, etc. However, if you sit where I sit, and if you observe jurors as they listen to leading questions in lieu of direct questioning, you will observe several disturbing things. Foremost, unless the leading questions are significant revelations, the jury gets bored. They just stop listening. Of course, if they are not listening, they are not hearing. And if they are not hearing, they are not processing the information. I've seen jurors close their eyes and get visibly annoyed at a long string of leading questions. More problematic than any transitory annoyance by a juror, however, is that he or she

does not form a lasting impression about the witness. Ask a juror post trial what he or she thought about the testimony of a witness who said relatively little other than “yes” or “no,” and you may well hear that the witness was of little or no consequence to their deliberations. Here are some of the responses I've heard: “I thought the witness was coached what to say and wasn't telling us the truth or the whole story;” “I think the witness was afraid to testify;” “It was boring;” or “The lawyer didn't let his client speak and I was suspicious and started paying more attention to the lawyer rather than any witness.” When a witness is not allowed to speak in his or her own voice, the jury does not get a feel for that person. The facts get lost in the presentation. What comes through in a lengthy set of leading questions is not the personality of the witness, but the personality of the attorney, and sometimes not for the benefit of the client. YouTube and other computer information technologies have been highly successful in conveying persuasive information using both a “face” and a “voice.” The prevalence of sound based information on the internet, cell phones, iPods and other communication devices are testaments to the growing importance of the voice and sound to everyday living. We have special ring tones on our phones. If we hear a certain song, we know if we want to answer the phone. And we know if we will answer it with a smile on our face or dread. Sounds both precondition us to what happens next, just like the scary music before the villain enters the room, and condition us to remember and evoke certain memories or thoughts. Imagine, if you will, a 40 minute video clip on GoogleVideo, where a voice off in the distance asks a series of questions, the camera remains focused on the face of the answerer, and all you hear for 30 or 40 minutes is “yes” or “no.” I daresay you'd sign off that site within the first few minutes. And that's what jurors do in their minds. Providing an opportunity for the jury to “hear” what people have to say in their own voice is often overlooked by attorneys, who value leading as the greatest weapon in their artillery. Jurors seem to respond to testimony where the witness is allowed to voice, in his or her own words, the events that transpired. From where I sit, it appears that their brains are engaged, they pay attention to the sound, tone and pace of both the attorney and the witness's voice, and they remember. There is an art to direct questioning. It is an art that is undervalued. Some of the best cross-examination I have observed in the courtroom-- in both criminal and civil trials-has really been direct questioning of an adverse witness, punctuated with leading questions that tie down the witness in his or her own voice. Planning the presentation of evidence that allows a witness to speak in his or her own voice as much as possible is in keeping with today's juror experiences in the real world. And it will keep them awake and engaged. 5

SEPTEMBER/OCTOBER 2008 SACRAMENTO LAWYER

Litigation

View From the Civil Trial Bench Jurors Asking Questions in the Courtroom

to their use, but they are ignored at counsel's peril, as they cue attorneys into what jurors do not understand, or may not have caught in prior testimony. Some trial counsel have candidly admitted that jurors have asked questions they did not think to ask and thus have been appreciative of having an opportunity to address -- or in some instances revisit -- areas that jurors appear concerned about. I also believe the process likely has reduced impermissible discussions in the jury room. This is particularly true where a question has been raised that alerted the Court to the need for additional or repeated admonishments that a particular area, such as insurance or a juror's personal experience, is off limits and must not to be discussed or considered. There are some federal courts, but as yet no reported decisions by California courts, that have questioned the constitutionality of the practice, as well as the ability of trial judges to manage situations where juror questions affect due process. The main concern is that by asking questions, an impartial fact finder is turned into a de facto third advocate, thereby distracting the juror from the real task at hand, i.e., listening, absorbing and rendering a decision from a fair and neutral perspective.3 More often, trial attorneys express concern that allowing jurors to ask questions affects their ability to control trial strategy and may open areas of inquiry which counsel have chosen not to address or perhaps have stipulated to allowing the court to decide. While these concerns are valid if juror questions are not handled properly, they are not insurmountable. Counsel need to be honest with the Court about trial strategies that may be adversely affected by juror questions. If there are valid reasons to deny inquiry into a particular area, the trial judge can so decide or, if appropriate, instruct the jury at the beginning of the case or at the appropriate time during trial regarding any limitations. Attorneys should understand that just because the attorney wishes to avoid certain questions, the juror is not precluded from considering those questions in his or her mind. Unexplored inner dialogue can be dangerous and affect the outcome of the case. Like any process involved in a jury trial, it is important that the Court and counsel work together to antici-

he Sacramento County Superior Court inaugurated its Civil Trial Division in January of 2006. These articles represent the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments and suggestions for future articles are welcome and should be addressed to hershej@saccourt.com Effective January 1, 2007, California Rule of Court 2.1033 provides that a California trial judge â&#x20AC;&#x153;should allow jurors to submit written questions directed to witnesses,â&#x20AC;? after providing counsel with an opportunity to object to the question outside the presence of the jury. The rule applies to both civil and criminal trials. As the innovation is embraced by a growing number of judges, it is important for trial attorneys to consider how best to use the process. Since many practitioners have not yet had the opportunity to work with the new rule or related jury instructions,1 some counsel are concerned about whether the process is good for their clients and the advocacy system in general. As discussions and personal experiences with the process grow, the number of those with reservations should decrease. My department has allowed jurors to ask questions for over two and a half years in civil trials, and I have just begun using the technique in criminal cases. Other judges throughout the state and the country, as well as here in Sacramento County, are using the process.2 My experience is that the ability to ask appropriate questions has contributed to a reduction in juror questions during deliberations. From personal observation, jurors appear to listen more attentively, and often ask questions which are not only relevant, but identify for counsel a missing element or fact viewed by jurors as important to their decision-making. Their questions then give counsel and the Court the opportunity to clear up areas of potential confusion in the facts through additional questioning and/or provide appropriate admonitions and instructions. The number of questions asked in a trial has varied from one or two, to literally dozens. Generally, the longer the trial, the more complicated the issues and greater number of witnesses, the more questions. Juror concerns may appear to be off-script and time consuming to trial counsel not accustomed

In considering the value of jurors asking questions, it is important for civil attorneys to remember that jurors are admonished that they can only take into account evidence that is presented during the trial.

SACRAMENTO LAWYER NOVEMBER/DECEMBER 2008

By Judge Judy Holzer Hersher

pate and avoid problems that may occur with this new process. This includes a discussion with counsel before the trial about how the procedure will work and a discussion with potential jurors during voir dire regarding the limitations of the process. In considering the value of jurors asking questions, it is important for civil attorneys to remember that jurors are admonished that they can only take into account evidence that is presented during the trial (CACI 100-Preliminary Admonitions; see also CALCRIM 101-Cautionary Instructions). Civil jurors are also told that they can consider (1) the ability of each party to provide evidence and (2) if a party has provided weaker evidence when it could have provided stronger evidence, jurors may distrust the weaker evidence (CACI 203). Similarly, CACI 205 allows a juror to consider whether a party failed to explain or deny some unfavorable evidence and that such inaction can be used to suggest that the unfavorable evidence is true.4 Questions by jurors give counsel an opportunity to make better decisions on what should and should not be explored before the jury. The criminal and civil jury instructions on juror questions are not identical. Both provide that the question must be written and that jurors should not discuss their question with other jurors until they are in the deliberation room. Both advise that the attorneys will have an opportunity to discuss their question with the Court before it is asked and that there may be legal reasons why a question is not asked. Both admonish jurors that they should not guess or be concerned with the reasons why their question was not asked. The CALCRIM criminal instruction goes further and advises jurors that they should not feel “slighted” or “disappointed” if their question is not asked because, among other reasons, the question may call for an answer that is inadmissible for legal reasons. The criminal instruction also admonishes jurors that they are not advocates for one side or the other and to remain impartial. I believe the criminal instruction covers more of the concerns that a civil attorney might have and I encourage the offering of the criminal instruction (CALCRIM 106) in civil trials. Further, I believe it is important for both the Court and the attorneys to talk with jurors during voir dire and tell them that the decision to ask or not ask their question is the Court's alone, based on the judge's knowledge and understanding of the law. As such, any feeling of disappointment or concern about the decision not to ask their particular question should be laid at the doorstep of the judge, and not counsel or the parties. In Department 45, the official court reporter transcript is the record of the actual question asked, which sometimes is modified from a juror's written question after consultation with the attorneys, as jurors often do not understand concepts such as compound questions or speculation. The original written questions are kept in the file, so that a complete record is maintained and any argument by counsel later can be placed in context. Of the literally hundreds of questions that have arisen in trials, less than handful have generated an objection by counsel or necessitated making a record of the objection and the

reasons for overruling the objection. If done properly, the process is a great enhancement to the jury process and, I believe, is an aid to trial attorneys. Judge Hersher provided the following script used to explain the process to potential jurors. It is provided for illustrative purposes only, so counsel can acquaint themselves with how a trial judge might handle the discussion with jurors. The Superior Court Judge's Voir Dire Script Explaining the Role of Jurors Asking Questions Ladies and Gentlemen, as part of the Court's continuing effort to improve justice and the jury system, we allow our jurors to ask questions to witnesses. If, during the trial, you have a question that you believe should be asked of a witness, you may write out the question and send it to me through the court attendant. I will discuss the question with the attorneys and decide whether it may be asked. Do not feel slighted or disappointed if your question is not asked. Your question may not be asked for a variety of reasons, including the reason that the question may call for an answer that is inadmissible for legal reasons. Also, do not guess the reason your question was not asked or speculate about what the answer might have been. Always remember that you are not advocates for one side or the other in this case. You are impartial judges of the facts. This is how the process works during the trial. One side is going to call a witness and all attorneys will have an opportunity to question that witness until each indicates their examination and cross-examination is complete. When they tell me they are done, I will then turn to you and give you a few minutes to write out any questions you may have for the particular witness, based on the testimony you have heard. Please do not be distracted by the writing of questions while the witness is testifying. I will give you a few moments to think and write after the examination is complete. Next, my Court attendant will collect the questions. I will meet with the attorneys at sidebar and see if we can quickly reach agreement on whether the question is legally permitted. If so, I will pose your question to the witness and ask that he or she turn and respond to the jury. I will then give the attorneys the opportunity to follow up with additional questions, if they feel it is appropriate. I will then again ask you if you have any further questions. And so it will go until counsel and jury are given an opportunity to ask appropriate follow up questions. Please understand that I, as the trial judge, make the final decision as to whether your question will be asked. If your question is not asked, please do not speculate as to why it is not asked. Just as importantly, do not hold it against any of the attorneys or their clients because your question is not asked. The decision to ask or not ask your question is mine alone to make. It is my job to know what questions are permitted Continued on page 17

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

NOVEMBER/DECEMBER 2008 SACRAMENTO LAWYER

Litigation

View From the Civil Trial Bench Using Depositions in a Civil Jury Trial By Judge Judy Holzer Hersher

deposition testimony before the jury. Importantly, unless used strategically and sparingly, the use of a deposition to present evidence at trial can be more of a negative than a positive. The California Evidence Code and the Code of Civil Procedure allow for the effective use of deposition testimony to challenge witness credibility during cross-examination. It is not necessary, for example, to give the witness an opportunity to review his or her testimony before impeaching their credibility with a prior inconsistent statement.1 The statutes distinguish, however, how and when deposition testimony can be used against a party as opposed to a non-party witness. The most significant difference is that practically anything said by a party in a deposition is potentially admissible, while statements made by a non-party witness have more limited admissibility. (Compare Code Civil Procedure section 2025.620(b) with section 2025.620(a) and (c).) Specifically, Code of Civil Procedure section 2025.620(b) allows the use of the deposition for “any purpose” against a party. The use of the testimony therefore starts with the presumption of admissibility, subject only to other sections of the Evidence Code, including lack of relevance, hearsay without exception, no foundation or where the probative value is outweighed by the prejudice of admission. (See, Evid. Code secs. 350-352, 400-403, and 1200 et. seq.) If the deponent is not a natural person, “party” includes any officer, director, managing agent, employee, or agent designated as the most qualified to testify. Often the battle in the courtroom is over whether someone is a managing agent, such that the presumption of admissibility applies and the statements bind the corporation or entity.2 With respect to a party witness, an attorney can offer into evidence portions of the party's deposition that are otherwise admissible. The text need not impeach or contradict the testimony of the party on the stand--although it is often used for this purpose--but may simply provide relevant background or information. Importantly, the deposition excerpts can be offered at any time, up to the time the case is finally submitted for decision. For example, the party need not be on the stand

resenting effective evidence in a civil trial is very different from gathering evidence in a deposition. Choice of deposition tactics, like whether to cover things chronologically or whether to establish a complete foundation for each question before eliciting answers, should be considered if the trial attorney wants to effectively use the

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SACRAMENTO LAWYER JANUARY/FEBRUARY 2009

at the time the excerpts are read. Under Code of Civil Procedure section 2025.620, as long as the offered testimony is admissible “under the rules of evidence applied as though the deponent were then present and testifying as a witness,” the testimony will come in. This is true even when the party is available to testify, has already testified, or will testify at some later time; and even though the party has not been asked or will never be asked the question on the stand that has been covered in the deposition. (See CCP section 2025.620(b).) In contrast, deposition testimony may only be used against a non-party witness under the circumstances set forth in Evidence Code section 770 regarding extrinsic evidence of inconsistent statements. Specifically, counsel generally can only offer the deposition testimony of the nonparty witness if it contradicts the fact offered by the witness while on the stand. And unlike a party witness, the Court can exclude the evidence if the non-party witness is not given an opportunity to explain or deny the inconsistent deposition statement. (See Evid. Code section 770(a).) Thus, if the statement is offered at a point in the trial when the non-party witness is not on the stand, the Court first determines whether the witness remains subject to recall or was not excused from giving further testimony in the action. (See Evid. Code section 770(b).) If the non-party witness cannot be recalled to explain or deny the inconsistency, it is very likely the deposition testimony will be excluded. Read together, Evidence Code section 770 and Code of Civil Procedure section 2025.620 provide more initial protection to the non-party witness, who has no stake in the litigation, is generally not represented at the deposition, and has not been counseled about ambiguous questions. In certain circumstances where the non-party witness is not on the stand or has been released from further testimony or cannot be located after testifying, the Court still can admit the extrinsic impeachment testimony, but only after considering the interests of justice. Attorneys will have an opportunity outside the presence of the jury to present their legal arguments in support of and in opposition to the admission. Under Evidence Code sec-

tion 1202, the Court also may allow the hearsay evidence if it tends to establish the witness's lack of credibility, even if the witness has not had an opportunity to explain or deny the inconsistency or conduct. In so considering, however, the court must give “due regard to the importance of presenting the testimony of witnesses orally in open court.” (See Evid. Code section 2025.620(c)(3).) Whether the witness is present or not, the Court must consider whether the offered extrinsic deposition evidence of a non-party in fact contradicts an in-court statement or impeaches credibility. Sometimes the deposition excerpt does just that, and counsel may well score a point for their client. However, if the question posed at deposition is not really on all fours with the question posed during trial, has too many variables, or does not contradict the witness' statement on the stand, the use of the deposition testimony can be denied. Even if the deposition testimony is allowed, counsel can look ineffective, over reaching or foolish in trying to make the witness out as a liar when the deposition testimony does not firmly establish this point. While the statutes distinguish between the use of party and non-party deposition at trial in the majority of Continued on page 17

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JANUARY/FEBRUARY 2009 SACRAMENTO LAWYER

Civil Trial Bench continued from page 15 establish a clear foundation in the deposition transcript. Finally, counsel should decide if using deposition testimony would actually score points for their side. Where impeachment or credibility is in issue, if the series of questions in court leading up to the impeachment are straightforward, unambiguous and on point with the general line of questions presented at deposition, it will be more difficult for opposing counsel to object or to rehabilitate the inconsistent witness. If not, counsel might well forgo offering to read from the deposition, lest they give the impression to the jury of ineffective lawyering.

clear foundation the are deposition instances,inthere a numbertranscript. of circumstances under CCP unsel should decide if using deposition testimony section 2025.620(c) where “any party may use for any ually scorepurpose points for side. Where impeachthetheir deposition of any person or organization.” redibility is(emphasis in issue, added) if the series of questions in The distinction between a party witness ing up to and the aimpeachment are straightforward, non-party witness disappears when: (1) the deponous and onent point with the general of questions resides more thanline 150 miles from the trial; (2) is at deposition, it will be more difficult for unavailable to testify becauseopposing of privilege or is deceased; object or (3) to rehabilitate the inconsistent has an existing physical or witness. mental illness or infirmity; unsel mightor well forgo the offering from the (4) when Courttois read unable to compel the deponent's , lest they attendance give the impression to the jury of inefby legal process. The Court can, again, conyering. sider whether there are exceptional circumstances that permit the use of the deposition testimony “in the interests should use of caution citing In to each cases prior to 1967. Prior the offering attorjustice.” of these exceptions, el for the witness under examination could require that thethrough the use of ney should be prepared to establish shown the prior written inconsistent statement, which admissible evidence his or her reasonable diligence in or her deposition transcript, before being asked about any attempting to secure the witness for in court testimony. made therein. (See, e.g., the history contained in the In summary, in preparing for sections deposition counsel should ommittee on Judiciary comments to Evid. Code consider how they ask questions if they hope to have the 9 and 7 Cal.L.Rev. Comm.Reports 1(1965).) This allowed answers trial the andinconfor their strategy to be n opportunity to both admitted review and during explain away ment immediately after They the jury was informed of to theattention incon- to the differences effective. should also pay ot before. This is norules longer case. in the onthe admissibility of party and non-party deposiWhite v. Ultramar (1999) 21 Cal.4th 563,hope 577-578 for a the casetestimony of a mantion testimony. If they to use idance on how to determine who is a “managing agent.” aging agent or agent or employee, they would do well to

1. Counsel should use caution citing to cases prior to 1967. Prior 1967, counsel for the witness under examination could require that the witness be shown the prior written inconsistent statement, which included his or her deposition transcript, before being asked about any statements made therein. (See, e.g., the history contained in the Assembly Committee on Judiciary comments to Evid. Code sections 768 and 769 and 7 Cal.L.Rev. Comm.Reports 1(1965).) This allowed the witness an opportunity to both review and explain away the inconsistent statement immediately after the jury was informed of the inconsistency, if not before. This is no longer the case. 2. See, e.g., White v. Ultramar (1999) 21 Cal.4th 563, 577-578 for a case that offers guidance on how to determine who is a “managing agent.”

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

JANUARY/FEBRUARY 2009 SACRAMENTO LAWYER

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

Litigation

Civil Case Management Orders and the New Trial Setting Program: Getting it Right the First Time

By Judge Judy Holzer Hersher

The Sacramento County Superior Court inaugurated its Civil Trial Division in January of 2006. This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments and suggestions for future articles are welcome and should be addressed to hershej@saccourt.com

1991, responding to concerns about the length of time it takes to get a civil case to trial, the California Legislature enacted the Trial Delay Reduction Act (“the Act”) (Government Code section 68600 et seq.). The Act provides that “judges shall have the responsibility to eliminate delay in the progress and ultimate resolution of civil litigation, and to assume and maintain control over the pace of litigation, to actively manage the processing of litigation from commencement to disposition, and to compel attorneys and litigants to prepare and resolve all litigation, without delay” (Government Code section 68607). Shortly thereafter, the Judicial Council adopted statewide rules for the implementation of the Act (Calif. Rules of Ct. 3.700 et seq.), and, ultimately, the Sacramento County Superior Court adopted local rules in compliance. (See Local Rule 11.00 et. seq.) Together, the Act and the rules establish timelines for the completion of service of pleadings, discovery, and trial. Except upon a showing of exceptional circumstances, all cases are automatically deemed “Class 1” and are supposed to be set for trial within 12 months of filing. (Local Rule 11.02) Due to dwindling court resources and substantial criminal trial calendars, and despite the best efforts and intentions of the Court and counsel, the Sacramento County Superior Court has been unable to provide enough courtrooms and judges to meet the trial delay mandate. At present, only four judges are assigned to manage over 30,000 civil cases in the system. If the Court held case management conferences in all cases, there would be no time to try cases. As a result, case management judges have developed ways to reduce the number of pre-trial case management appearances in order to maximize the amount of time each courtroom is available for trials. With the advent of the new Sacramento County trial setting process (TSP) for civil cases, it is more important than ever that counsel join in the effort by taking the time necessary to accurately and fully complete the case management conference statement (CMCS) (Judicial Council form CM-110 Revised January 1,

SACRAMENTO LAWYER MARCH/APRIL 2009

2007) required by Cal. Rules of Court 3.720-3.730. To better understand the relationship between the new TSP program and the Trial Delay Reduction Act, or case management program, counsel should understand that their case can be referred to trial setting at the very first case management conference, typically scheduled between 150 and 180 days after a complaint is filed (Local Rule 11.05(A)). The case management conference is, of course, preceded by the mandatory filing of the CMCS approximately 120 days after the complaint is filed. The CMCS is the roadmap for all decisions regarding case management by the trial judge. Sacramento’s new TSP process took effect for civil trials July 1, 2008 (Sacramento Local Rule 6.01(A) and (B)). Under the new program, within 60 calendar days of the date of the order to trial setting or the filing of a request for trial de novo after arbitration, the parties must select a trial and settlement conference date. The available trial and settlement conference dates are available on the Court’s website at http://www.saccourt.com and are updated daily. The rule also provides that if the parties cannot agree or if they fail to select dates within the time frame specified, the Court will select a trial date and a mandatory settlement conference date for them. Typically, counsel will not be ordered to appear at a case management conference if a case management judge is presented with all necessary information to make an informed decision regarding trial management. The case management judge will post a tentative case management order after reviewing all CMCSs. Counsel should carefully review the tentative ruling online for accuracy regarding the necessary timing to bring a case to trial and request an appearance if they have concerns about the trial timeline outlined by the Court, as the decision to refer or defer referral to TSP is now made at the first case management conference. There are 75-100 case management conferences scheduled each week on Thursday morning at 8:30 a.m. in each of the four departments assigned case management duties. 12

priate referral to arbitration. Arbitration must be concluded within 60 days after the assignment of the arbitrator, absent a court approved continuation (see Local Rule 11.10(c)).2 The new TSP program, in combination with the tentative ruling program for case management conferences, is designed to streamline the process for counsel, the parties, and the Court and to avoid unnecessary attorney fees and appearances. It is also designed to maximize judicial resources for trial by reducing duplicative case management review and hearings. It will work to everyoneâ&#x20AC;&#x2122;s benefit if counsel take the time to appropriately complete the CMCS the first time and thereby avoid unnecessary subsequent motion filings.

If counsel do not request a hearing on the proposed management order, the tentative order is affirmed on the day of hearing and counsel for plaintiff is assigned the responsibility to give notice to all parties. Absent accurate information in the CMCS, the parties will be ordered to select a trial date within 60 days of the hearing. The trial date then sets deadlines for the closing of discovery, expert disclosure, depositions, and dispositive motions (Code of Civil Procedure section 2024.020). Counsel should review California Rules of Court 3.727 through 3.730 and Local Rule 11.06. These sections cover subjects that are considered by the Court in making its case management orders and in deciding when a case should be ready for trial. Counsel should answer questions 16, 17, and 19 on the CMCS form as completely as possible. Question 16 asks counsel to list all motions the party or parties expect to file before trial. Question 17 requires a list of all discovery that will be completed by a specific date and the identification of all discovery issues that are anticipated. Counsel are also required to provide a list of established trial dates. Local Rule 11.055(D) and California Rule of Court 3.724 provide that the parties must meet and confer in person or by telephone no later than 30 calendar days before the case management conference date. Counsel must discuss how best to complete the CMCS form so that it accurately reflects how long the case will take to prepare for trial. If critical information is left off, the Court may be left with the inaccurate impression that the case is straightforward and can be ready for trial within six months after the case management conference date. While cases evolve and nuances may develop only after discovery, most cases follow a fairly straight course; discovery and other motions can be anticipated at the outset. Once a referral is made to the TSP, vacating the referral or reopening discovery requires a motion, payment of motion fees, and sometimes an appearance. The rules provide that â&#x20AC;&#x153;no trial setting conference, CMP timeline or trial may be dropped, extended or continued by stipulation of the partiesâ&#x20AC;? (Local Rule 11.18). As a result, even if the parties stipulate to an extension, the parties will still have to file a motion, pay the filing fee, and, if requested, make an appearance. They also run the risk that the motion will be denied. In short, the failure to accurately detail the extent of anticipated discovery or motions in the case will likely result in an early order of referral to TSP. If the parties fail to appear at the CMC to contest the referral, the parties will then have to file a separate motion in order to discuss the case with the Court.1 Inaccurate information may also result in an inappro-

1. If a request is made to vacate the TSP and order to select a settlement conference date, counsel should download and use the CV\E185(Rev. 10.17.2008) version of the ex parte application. The August 2008 version, now outdated, does not contain all the necessary information a judge needs to consider and may well delay the order and/or result in its denial. 2. Typically, cases are referred to arbitration around the 210th day after filing.

Collection of Articles by Judge Judy Holzer Hersher

2008-2015 13

MARCH/APRIL 2009 SACRAMENTO LAWYER

Litigation

View from the Civil Trial Bench

By Judge Judy Holzer Hersher

Civil Jury Instructions (Part 1): Untimely Submission By Trial Counsel – An Oversight with Significant Consequences

add, modify, or otherwise improve upon their first initial set at a later time. Attorneys who take this approach may be in for a rude awakening. A trial judge has an arsenal of statutes and case law that could bar later submissions as untimely. Unlike criminal cases, where a court has a strong sua sponte duty to instruct the jury on a wide variety of subjects, a court in a civil case has no parallel responsibilities. Rather, it is the civil litigant who must propose complete instructions in accord with the theory of their case. (See, e.g., Mayes v. Bryan (2006) 139 CA 4th 1075, as modified; In re Conservatorship of George H. (2008) 169 CA 4th 157.) Failure to do so may cut off any appellate relief on instructional error. CCP section 607a gives civil trial counsel three opportunities to submit instructions. The first statutory deadline is identified as a “duty” of trial counsel. The second and third deadlines provide additional opportunities to submit new instructions, but both carry conditions and require court permission. Case law supports the trial judge's right to deny permission to give these additional instructions for a variety of reasons. CCP section 607a reads as follows: “…it shall be the duty of counsel for the respective parties, before the first witness is sworn, to deliver to the judge presiding at the trial, and serve upon opposing counsel, all proposed instructions to the jury covering the law as disclosed by the pleadings.” (Emphasis added.) Counsel have a second opportunity created by statute to submit additional instructions, but that opportunity is only available if there are “questions of law developed by the evidence and not disclosed by the pleadings.” (Emphasis added.) In other words, the second opportunity does not allow for introduction of instructions that were apparent to anyone who perused the relevant pleadings in the case. The second opportunity is only available when unanticipated evidence not otherwise associated with or disclosed by any pleadings is presented at trial and raises new legal issues. Finally, if counsel are surprised by the closing argument of the other side, i.e., an opposing party otherwise raises unidentified and unanticipated issues that were not apparent

his article is a first in a series that looks at issues surrounding jury instructions in civil trials: specifically, how and when they should be offered, and what is and is not a permissible special instruction. All articles in this column represent the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Jury instructions are the vehicle by which twelve unrelated individuals, with little or no understanding of the law, reach important decisions everyday in our courthouses. Relying on those instructions, jurors assign fault and liability, or absolve the civil defendant in the eyes of the community. The jury instruction packet is the single most important document that affects the outcome of a trial. Counsel, of course, have standard form instructions that are routinely selected, based on decades of experience and case law. The art comes in when specially drafted instructions tailored to an individual case are proposed. In the latter instance, an understanding of design, form and legal reasoning all necessarily combine as part of the creative process. All is for naught, however, if the instructions are rejected by the court. California trial court judges require the filing of proposed civil jury instructions consistent with Code of Civil Procedure (CCP) section 607a, California Rule of Court 2.1055, and any applicable local rules. In Sacramento County, Local Rule 7.01 applies and expresses a preference for instructions from the California Jury Instructions-Civil or CACI, published by the Judicial Council of California. Read together, including Sacramento's rules, those trying a case in this county must file any and all jury instructions covering the law of their respective cases as disclosed by the pleadings in the case before the first witness is sworn. (CCP § 607a.) The form and format of the proposed instructions, including specially or individualized instruction based on the unique law or facts of the case, are specified in Rule 2.1055. With the time pressures that always precede a civil trial, many attorneys haphazardly pull together what they believe is just their “first draft” set of jury instructions and submit them to the court. Those who do so are under the mistaken belief that these instructions somehow preserve their right to

SACRAMENTO LAWYER MAY/JUNE 2009

mitted additional proposed instructions on a multiple occurrence theory, i.e., that more than one event and therefore more than one actor contributed to the contamination over time, which would have spread responsibility for insurance coverage between many parties and insurance carriers. The Court denied the request to give the instruction and to argue the theory to the jury. The appellate court upheld the ruling, finding that the offering party had been well aware of the legal theories of liability addressed in its proposed additional instructions since the beginning of the case, and the new instructions did not depend on newly discovered or developed evidence at trial. This proved to be a costly mistake for the party. In short, judges can deny instructions on any issue not offered within the time limits set by statute and local rule. Subsequent articles will address discovery rulings and their impact on instructions, as well as argumentative and improper formula instructions, the use of quotations and definitions, and instructions after a jury indicates it is confused.

as the evidence developed, there is a third and final opportunity to ask the court to give additional instructions. The court has the discretion to grant or deny this final opportunity to request additional instructions, as well. In all three circumstances, CCP section 607a requires the submission of written jury instructions. Thus, counsel cannot rely on their oral requests for new instructions made during the trial. While many of the cases supporting a trial judge's decision to not allow additional instructions are premised on multiple grounds--and not just untimely submission-- a quick review of case annotations to CCP section 607a illustrates the significant downside to those who do not pay careful attention to the filing requirement that all jury instructions relevant to any issues disclosed by the pleadings be filed before the first witness is sworn. In Anderson v. Latimer (1985) 166 CA3d 667, the Court declined to allow the defendant in a personal injury case to offer an instruction that justified her actions as consistent with a reasonable person being faced with a sudden emergency (now CACI 452). The instruction was offered for the first time after the first witness was sworn. The appellate court affirmed the judge's right to refuse the instruction on a number of grounds, including that it was tardy and not in the proper form (i.e., made orally). Similarly, in Young v. Carlson (1954) 128 CA2nd 743, 746, a pedestrian/auto accident case, in which on the last day of trial and after both sides rested, Plaintiff offered an instruction on the last clear chance doctrine (last opportunity to avoid the accident), the Court held that judges have discretion to accept or refuse instructions tendered after the time limit imposed by CCP section 607a and have similar discretion in whether to entertain oral requests for instructions. To see just how costly a blunder of not paying careful attention to the time constraints in CCP section 607a might be for both the client and the attorney, counsel should review FMC Corporation v. Plaisted and Company (1998) 61 Cal.App.4th 1132, 1164. In this 45 page decision, the appellate court addressed liability and insurance coverage for millions of dollars in environmental cleanup costs. The manufacturer of equipment and chemical compounds filed actions against numerous general liability insurers, including defendants who had issued umbrella and excess-coverage policies, to indemnify it for the cost of reimbursing government agencies and of complying with orders for investigation and remediation of toxic contamination of soil, surface water, and groundwater beneath the surface. The contamination occurred at many sites and over a long period of time. A total of fifty-seven sites were assigned for trial in eight groups, with eight separate juries deciding certain critical issues of fact for the Court. In one trial in particular, counsel for both sides had rested and then defendant sub-

The Sacramento County Superior Court inaugurated its Civil Trial Division in January of 2006. Comments and suggestions for future articles are welcome and should be addressed to hershej@saccourt.com

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2008-2015

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MAY/JUNE 2009 SACRAMENTO LAWYER

Litigation

View from the Civil Trial Bench

By Judge Judy Holzer Hersher

Civil Jury Instructions Civil (Part Jury 1):Instructions Untimely Submission (Part 2): By Trial Counsel – An Oversight Argumentative with Significant Instructions Consequences

to their duties. At the same time, upon the CACI recogadd, modify, or otherwise improve theirdrafters first initial set nize that the standard instructions do not cover every posat a later time. Attorneys who take this approach may be in sible permutation of legal theory orhas case, thatofthey may for a rude awakening. A trial judge anand arsenal statutes need to modified by thebar triallater judge to reflect recent changes and case law that could submissions as untimely. in the law or the nuances the law as applied the case. Unlike criminal cases, ofwhere a court has atostrong sua A partyduty hastoa instruct right to the tailor neutral instructions provide sponte jury on a wide variety oftosubjects, guidance unique factsresponsibilities. require some a court into a the civiljury casewhere has no parallel changes or additions to general instructions to reflect the Rather, it is the civil litigant who must propose complete law a jury has apply.with However, thisofis their not the same as instructions in to accord the theory case. (See, arguing the case to the jury through the use of written e.g., Mayes v. Bryan (2006) 139 CA 4th 1075, as modified; instructions. In re Conservatorship of George H. (2008) 169 CA 4th 157.) A quick search willappellate produce relief dozens appelFailure to docomputer so may cut off any onofinstruclate cases that consistently use the foltional error. lowing statement of law in analyzing CCP section 607a gives civil trial counsel three opportuni-a challenge to statutory a trial court's ties to submit instructions. The first deadlinedecision is idendenying a supplemental instruction: tified as a “duty” of trial counsel. The second and third dead“Instructions should state new rulesinstrucof law lines provide additional opportunities to submit in general terms and should not be tions, but both carry conditions and require court permission. amount to permission an argument Case law supports the calculated trial judge'storight to deny to to the juryfor in athe guiseofofreasons. a statement give these additional instructions variety law. as[Citations.] Moreover, is CCP section 607aofreads follows: “…it shall beitthe error to give, parties, and proper refuse, duty of counsel for the respective beforetothe first that unduly overemphawitness is sworn, to instructions deliver to the judge presiding at the size opposing issues, theories or defenses either trial, and serve upon counsel, all proposed by covering repetitionthe or law singling them out or instructions to the jury as disclosed by the making them unduly prominent pleadings.” (Emphasis added.) Counsel have a second although instruction may be a opportunity created by statute tothe submit additional instruclegal [Citations.]”is (See, Majorifv.there Western tions,proposition. but that opportunity only e.g., available are Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1216 and Red “questions of law developed by the evidence and not disclosed by Mountain, LLC.(Emphasis v. Fallbrookadded.) Public Utility Dist. (2006) the pleadings.” In other words, the 143 secCal.App.4th 333,does 360.)not allow for introduction of instrucond opportunity Asthat the were term apparent implies, an instruction tions to argumentative anyone who perused the conreletains a selectiveinor rendition of the facts is oronly law vant pleadings theelaborate case. The second opportunity that is typically slanted in favor of or against one side. In available when unanticipated evidence not otherwise assoshort, argumentative does not is present the relciated an with or disclosedinstruction by any pleadings presented at evant lawraises or elements of aissues. claim or defense in neutral terms. trial and new legal Rather, the ifinstruction objectionable large part because Finally, counsel areissurprised by theinclosing argument of it on one side's The danger theplaces otherundue side, emphasis i.e., an opposing partycase. otherwise raises with giving an thatnot it lends the unidentified andargumentative unanticipatedinstruction issues that is were apparent

his article is athefirst second a series at issues in a in series that that lookslooks at issues sursurrounding juryinstructions instructions.in The County rounding jury civilSacramento trials: specifically, Superior inaugurated its offered, Civil Trial January how and Court when they should be andDivision what isinand is not ofa 2006. All special articlesinstruction. in this column represent the column thoughtsrepreand permissible All articles in this opinions of the author and should not be considered court policy sent the thoughts and opinions of the author and should not be or the opinion of policy other trial judges. andjudges. suggestions considered court or the opinionComments of other trial for future articles are welcome and should be addressed herJury instructions are the vehicle by which twelvetounreshej@saccourt.com lated individuals, with little or no understanding of the law, reach important decisions everyday in our courthouses. Parties entitled to legally correct, Relying on are those instructions, jurors assignnon-argumentafault and liabilitive jury the instructions on every theory they ty, orcivil absolve civil defendant in the eyesofofthe thecase commuadvance trial that is supported by single substantial evidence. nity. The at jury instruction packet is the most important They also are document thatentitled affects to theinstructions outcome of a trial. Counsel, of that arehave particularized unique course, standard formto instructions that are routinely facts or based circumstances. v. and case law. The selected, on decades of(Soule experience General Corp. (1994)drafted 8 C4thinstructions tailored to art comesMotors in when specially 548, 572.) case are proposed. In the latter instance, an an individual Soule, the leading caseform in the field, understanding of design, and legal reasoning all necesis oftencombine cited byastrial sup- process. All is for sarily partcounsel of the in creative port of however, additional jury instructions naught, if the instructions are rejected by the court. theyCalifornia want read to the jury. Yet the trial court judges require the filing of proposed import the case isconsistent frequentlywith miscivil juryofinstructions Code of Civil Procedure understood and therefore misapplied. (CCP) section 607a, California Rule of Court 2.1055, and any Counsel that the County, Local Rule applicablemistakenly local rules.believe In Sacramento right to “particularize 7.01 applies and expressesinstructions” a preference for instructions from allows them toJury craft instructions thator CACI, published by the California Instructions-Civil discuss the specific of the caseRead or together, including the Judicial Councilfacts of California. add quotes that favor their side.a case Theinnumber one must reason Sacramento's rules, those trying this county filea party's specially drafted jury instructions are rejected by any and all jury instructions covering the law of their respec-a trial cases courtasisdisclosed that they, are notin “particularized” or tive byin thefact, pleadings the case before the neutral offerings on the legal theoryThe of the case, rather first witness is sworn. (CCP § 607a.) form andbut format of are argument. the proposed instructions, including specially or individualjudgesbased generally compare supplemental izedTrial instruction on the unique lawany or facts of the case, instructions to Rule those2.1055. contained in the Judicial Council of are specified in California Civil Jury Instructions (CACI).precede CACI ais civil designed With the time pressures that always trial, to provide the jury with consistent and impartial statements many attorneys haphazardly pull together what they believe of just the law. is alsoset designed be understandable to is their CACI “first draft” of jury to instructions and submit the average juror. Those Significant effort is made conthem to the court. who do so are undertotheavoid mistaken fusingthat language or statements that might mislead theright jury to as belief these instructions somehow preserve their

Instructions should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law.

SACRAMENTO LAWYER JM ULY AY/A /JUNE UGUST 2009 2009 n

following, which was rejected by the Court.

appearance that the court believes certain evidence is more important than other evidence, or should carry more weight with the jury during its deliberations. A court has no duty in civil litigation to rewrite an argumentative instruction, except perhaps where the simple striking a word or two might save the instruction. Thus, if a court determines an instruction is argumentative, the entire instruction can be rejected. (See e.g., Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 158; Bullock v. Phillip Morris USA Inc. (2008) 159 CA4th 655, 684-686); Logacz v. Limansky (1999) 71 CA4th 1149, 1159.) So what are the red flags that judges look for in identifying argumentative instructions? 1. Quotes: Attorneys believe that if they quote directly from an appellate case, the offered jury instruction must be appropriate. Not necessarily. Problem instructions include those that take language from appellate opinions where the decision is based on the unique facts before it or on public policy, rather than on a rule of law. Every case is different and thus quoted comments taken out of context is discouraged. (Ernest v. Hahn, Inc. v. Sunshield Insulation Co. (1977) 68 CA3d 1018,1023.) 2. Repetitive Instructions: Counsel often submit multiple instructions that say the same thing. Instructions that repeat the same general principle of law can rise to the level of argument by giving the jury the impression that a particular instruction is more important than others. (See, e.g., Arato v. Avedon (1993) 5 C4th 1172,1189, fn. 11; Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 CA2d 675, 719; Hyatt v. Sierra Boat Co. (1978) 79 CA3d 325, 335.) 3. Definitions: When parties craft definitions for a jury instruction not otherwise defined in a statute or regulation, it can be construed as an attempt to persuade. Generally, trial judges avoid the use of definitions in jury instructions unless there is a statute or regulation on point, or where an appellate court, after review of the history and policy behind a particular word or phrase, defines it. (See, e.g., Lundy v. Ford Motor Co. (2001) 87CA4th 472.) 4. Oratory: Generally, jury instructions are pretty dry fare. If a proposed supplemental instruction reads like a colorful oration, the instruction is in problem waters. Below is an example of one such instruction taken from the 1964 case of Fibreboard Paper Products Corp. v. East Bay Union Machinists (1964) 227 CA2d 675, a case that is repeatedly cited when the issue of argumentative instructions comes up. In Fibreboard, an Emeryville, California manufacturer complained that certain illegal acts engaged in by a striking union during picketing resulted in a loss of business and profits. The union offered several instructions, including the

“The law recognizes that the right to strike and picket includes the possibility of some disorder in any extensive or long drawn-out strike. Engaged in the activities are human beings who feelings are stirred to the depths. Rising tempers can call forth hot words, which in turn can lead to blows. Such unfortunate developments are hard to prevent, even when cool heads direct the picketing. By this Instruction I do not mean that the law excuses intimidation on the picket line. This would exceed the bounds of proper conduct. However, isolated incidents of vigorous behaving in picketing do not make the entire picketing activity unlawful, nor do such isolated incidents make a union liable for damages to an employer's business caused by picketing.” Instead of providing guidance to the jury, the instruction confuses more than it clarifies. What does it mean to have feelings stirred to the depths in the context of a prima facie case for loss of business profits? Are blows really “unfortunate developments,” or actionable torts with the necessary intent, proximate cause and damages? What is “vigorous behaving”? How does one determine an “isolated incident” or when conduct “exceeds the bounds of proper conduct”? In short, the instruction offers little by way of guidance on what the law finds actionable and is clearly argument. It may well produce confusion in light of other instructions as well. (See also Perry v. Schwartz (1963) 219 CA2d 825, as an example of when courts sustain objections to instructions as not only argumentative, but because they are abstract statements of law without applicability to the case at bar.) 5. Confusing or misleading instructions. Civil jury instructions should provide jurors with a roadmap of what they need to decide and the legal standards they should apply in making their decision. If a proposed additional instruction creates confusion or has the potential to mislead the jury, it is unacceptable. (Kuehn v. Lowthian (1954) 124 CA2d 867, 870-873.) 6. Selective Rendition of the Facts. Except in very limited circumstances, where court and counsel agree that a finding of a particular fact is dispositive of the jury's decision, counsel are not permitted to pick certain facts for inclusion in jury instructions and tell jurors how they should find if they agree with particular facts. (See, e.g. instruction 39 in Fibreboard Paper Products Corp. v. East Bay Union of Machinists, supra, (1964) 227 CA2d at pages 713-722 (Instruction 39 rejected as a “formula instruction.”)) 17

JULY/AUGUST 2009 SACRAMENTO LAWYER n

LitigationLitigation should advise the jury to disregard the incorrect instruction. Otherwise, the new or corrected instruction may create confusion or a clear conflict in the law, leading to reversible error. (Sandoval v. Bank of America (2002) 94 Cal.App.4th 1378, 1388-1389; Slayton v. Wright (1969) 271 CA2d 219.)

the Civil View View fromfrom the the Civil Civil h TrialTrial Bench Bench By Judge Judy By Judge Judy Litigation Holzer HersherHolzer Hersher

Identify Instructions To Reread That Avoid Both Error and Prejudice Jurors are entitled to be reread all instructions that they request on a particular topic. Failing to reread all instructions on the topic or area requested amounts to reversible udy error. (Davis v. Erickson (1960) 53 Cal.2d 860.) Thus, court sher and counsel should insure they identify and read all instruche Sacramento County he Sacramento SuperiorCounty Court Superior inaugurated Court its inaugurated itscover the question posed or the area of confusion. tions that Civil Trial Division CivilinTrial January Division of 2006. in January Theseofarticles 2006. These articles Next, consider whether it is appropriate to ask the court to represent the thoughts represent andthe opinions thoughts of the andauthor opinions andofshould the author not and reread should not other instructions as well. This is a good time for be considered court be considered policy or the court opinion policyoforother the opinion trial judges. of other trialcounsel judges. to review the jury packet and double check that all mento County Superior Court inaugurated its This is the third in This a series is the of third articles in a series on jury of instructions articles on jury andinstructions and the necessary instructions have in fact been offered. al Division in January of 2006. These articles issues. and suggestions Comments for andfuture suggestions articlesforare future welcome articles are welcome a juror's question leads to the realization that an ughts and opinions of theComments author andissues. should not Sometimes urt policy or theand opinion of other judges. should be trial addressed and should to be hershej@saccourt.ca.gov. addressed to hershej@saccourt.ca.gov. important instruction inadvertently has not been given and rd in a series of articles on jury instructions and should be read to cure any error. (Weirum v. RKO General, s and suggestions for future articles are welcome Just when you Just thinkwhen the trial you isthink overthe andtrial all you is over have and to all you to 15 C.3d 40, 50; see also Jensen v. BMW of North dressed to hershej@saccourt.ca.gov. Inc.have (1974) do is wait for the do verdict, is wait for thethe jurors verdict, sendthe a question jurors send to the a question to the America, Inc. (1995) 35 Cal.App.4th 112.) It is also approou think the trial is over and all you have to court and advise court thatand deliberations advise thathave deliberations stopped pending have stoppedpriate pending to ask the judge to admonish the jurors not to attach he verdict, the jurors send a question to the an answer. California anpending answer. RuleCalifornia of Court 2.1036 Rule of provides Court 2.1036 that provides that any particular significance to any instructions that are read e that deliberations have stopped ifornia Rule of Courta 2.1036 provides after jury reports after that athat juryit reports has reached that itanhas impasse reached in an its impasse in its for a second time or, for that matter, any new instructions, orts that it has reached an impasse in itsjudge can deliberations, the deliberations, trial the trial address judge juror canconfusion address juror or confusion and alsoorto ask that the court remind jurors of their duties he trial judge can address juror confusion or uncertainty in uncertainty a number of in ways. a number These of include ways. These giving include giving as stated in CACI 5000 (i.e., pay careful attention to all the a number of ways. These include giving uctions, clarifying previous instructions, instructions, or clarifying additional additional instructions, previous clarifying instructions, previousorinstructions, or instructions). neys to makepermitting additional closing arguments. attorneys permitting to make attorneys additional to make closing additional arguments. closing arguments. ed arises, it is important for trial counsel to such need When suchitaisneed important arises, it foristrial important counselfor totrial counsel See ifto CACI has an Instruction time to assist When the court. (SeeaCode of arises, Civil be ready at any be time ready to assist at any the time court. to assist (See the Code court. of Civil (See Code ofWhen Civil a simple rereading of existing instructions is not ons 617 and 134 (a)(1) and (2), which court remain Procedure open for everysections purpose conProcedure 617 and sections 134 617 (a)(1)and and134 (2),(a)(1) which and (2), whicha trial court will default to Judicial Council of enough, cause submitted to the jury until the jury is require that a require court remain that a open court for remain every open purpose for every conpurpose con- Civil Jury Instructions (CACI) to determine if California uding holidays and weekends.) with the nected causetowith submitted the cause to the submitted jury untiltothe thejury juryisuntil the jury is existing instruction that addresses the need. The rovide timelynected and appropriate guidance there is an ding an improper or misleading response,holidays discharged, including discharged, including and weekends.) holidays and weekends.) California jury instructions provided by the Judicial eversible error. (Sandoval v. Bank of America Failure to provide Failure timely to provide and appropriate timely and guidance appropriate to guidance Council to are “the official instructions for use in the state of pp.4th 1378, 1388-1389; Bartosh v. Banning, or(1990) providing jurors, an or improper providingoranmisleading improper or response, misleading California” response, and their use is “strongly encouraged.” The stat2d 378; Sesler jurors, v. Ghumman 219 CA3d mportantly, attorneys who offer can inaccurate can constitute reversible constitute error.reversible (Sandovalerror. v. Bank (Sandoval of America v. Bank of edAmerica goal is to “improve the quality of jury decision making inviting error that may affect appellate issues (2002) 94 Cal.App.4th (2002) 94 1378, Cal.App.4th 1388-1389; 1378, Bartosh 1388-1389; v. Banning, Bartosh v.byBanning, providing standardized instructions that accurately state ble to their client. (Stevens v. Owens-Corning (1967) CA2d (1967) 378;251 Sesler CA2d v. Ghumman 378; Sesler (1990) v. Ghumman 219 CA3d (1990) 219 CA3d (1996) 49 Cal. App 4th251 1645.) the law in a way that is understandable to the average juror.” provides a framework counsel to use inJust asattorneys 218.) for Just as 218.) importantly, importantly, who attorneys offer inaccurate who offer inaccurate See Cal. Rules of Ct. 2.1050(a) and (e). Before a court will urt when jurors signal problems with jury instructions areinstructions inviting error arethat inviting may affect error that appellate may affect issuesappellate issues adopt an attorney's proposed language for an instruction, it ing deliberation. otherwise favorable otherwise to their favorable client. to (Stevens their client. v. Owens-Corning (Stevens v. Owens-Corning must satisfy itself that: (1) a different instruction would Should Agree Fiberglass Corp.Fiberglass (1996) 49Corp. Cal. (1996) App 4th491645.) Cal. App 4th 1645.) more accurately state the law and be understood by jurors; oblem This article provides This article a framework providesfor a framework counsel to for use counsel in to use in does not contain an instruction on the subject; (2) CACI he jurors' note reveals that they are simply assisting the court assisting whenthejurors courtsignal whenproblems jurors signal with problems jury with jury and/or (3) the CACI instruction cannot be modified to subSEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER 11 instructions during instructions deliberation. during deliberation. mit the issue properly. (Cal. Rules of Ct. 2.1050(e).)

View from the Civil Trial Bench

Everyone Everyone Should Agree Should Agree on the Problem on the Problem Sometimes theSometimes jurors' notethe reveals jurors'that note they reveals are simply that they SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009

Proposed new instructions should be presented in a neutral, non-argumentative manner and “should be accurate, brief, understandable, impartial, and free from arguare simply ment” (Cal. Rules of Ct, rule 2.105(e)). Verbatim quotes Continued on2009 page SEPTEMBER/OCTOBER SEPTEMBER 2009 S/O ACRAMENTO CTOBER LAWYER S18 ACRAMENTO 11 LA

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Litigation

View from the Civil Trial Bench

Juror Nullification in the Civil Trial: Power without Right

The Sacramento County Superior Court inaugurated its Civil Trial Division in January of 2006. These articles represent the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments and suggestions for future articles are welcome and should be addressed to hershej@saccourt.ca.gov tea in the Boston harbor and declared publicly that we would not follow the law on principle. Appellate courts aptly have noted that while jury nullification has, on some occasions, achieved just results, “it also has led to verdicts based upon bigotry and racism…[and] violates one of the nation’s most basic precepts: that we are a government of laws and not men.” (People v. Williams, supra, (2001) 25 Cal. 4th at p. 459, fn. omitted.) It also ignores the fact that the laws have been passed by individuals elected by the public to make those decisions.

ury (or juror) nullification is a jury’s (or juror’s) defiance of the law in reaching a verdict in a criminal or civil case. (People v. Estrada (2006) 141 Cal. App. 4th 408, 414, citing U.S. v. Thomas (2nd Cir. 1997) 116 F.3d 606, 614.) It can be based on a party’s identity, dislike of a particular prosecution at issue, or a personal or general opposition to a particular law or laws. (People v. Estrada, supra, 141 Cal.App.4th at 414.) Experienced trial attorneys have all come across jurors who state they cannot or will not follow the law based on the jurors’ perception of how the jury and court system should be run, or based on personal philosophy or experience. It is often expressed as the right to vote one’s conscience, even if it violates established law. Most attorneys worry, however, about the juror who does not openly express antipathy to a particular law, but who will nonetheless ignore the law. In our legal system, criminal and civil jurors have always had the power to engage in jury nullification, however, they have no right to do so. The difference between the power and the right has confused attorneys and jurors and led to disputes over what judges can tell jurors during voir dire and instruction, as well as what questions attorneys can ask of potential jurors during voir dire. It also affects what a court may ask and do after a juror reports a failure to follow the law in the jury room. In the last decade, California’s highest court has addressed the difference between “power” and “right” to engage in jury nullification in several published criminal opinions. The three most often cited are People v. Cleveland (2001) 25 Cal. 4th 466; People v. Williams (2001) 25 Cal. 4th 441; and People v. Engelman (2002) 28 Cal. 4th 36. A thorough discussion of the distinction also is contained in the Third District Court of Appeal decision People v. Estrada (2006) 141 Cal. App 4th 408. The concept of being able to ignore the law and follow one’s conscience is in many ways part of the American psyche. After all, we are the descendents of those who dumped

By Judge Judy Holzer Hersher

SACRAMENTO LAWYER NOVEMBER/DECEMBER 2009 �

“Power” versus “Right”

The distinction between a power to do something and a right to do something can be simply illustrated. Each person has, by example, the “power” to punch someone in the nose for no reason whatsoever. However, he or she does not have the “right” to do so. Engaging in physical assault without justification has consequences. So too for the civil juror who exercises the “power” to engage in nullification by not following the law. He or she has no right to do so, and the consequence is removal from the jury either before or during deliberations. A further consequence may be a new trial or a judgment set by the trial judge. While it is the duty of court and counsel to guard against juror nullification, it also is equally important to safeguard and preserve the sanctity of vigorous discourse during jury deliberations. Jurors must be free to stand by their beliefs in a difficult case without fear that fellow jurors will seek their removal to in order to reach a particular result. The tension between the power and the right is most often observed when jurors express during voir dire that they will not or cannot follow the law for personal reasons. And while trial judges do not discuss the power jurors have to engage in nullification, courts can tell civil (and criminal) jurors during voir dire and pre-instruction that they have no authority to disregard the law and obtain their assurance that they will follow the law if chosen to serve on a jury. Consistent with the admonition by the appellate courts not 20

court, or refuses to deliberate, a court can make “reasonable inquiry” and the offending juror can be discharged if it appears “as a demonstrable reality” that a juror is unable or unwilling to deliberate as advised. (People v. Cleveland, supra, 25 Cal. 4th at p. 474-484; People v. Williams, supra, 25 Cal. 4th at pp. 463-464; People v. Engelman, supra, 28 Cal. 4th 36.)

to encourage or glorify the power of the jury to disregard the law, trial courts emphasize the duty to follow the law as provided to them and get assurance that each juror will without reservation follow the court’s instructions and rulings on the law. (People v. Estrada (2006) 141 Cal. App 4th 408, 415; see also the California Standards of Judicial Administration, sections 3.25(c) (19) [Examination of prospective jurors in civil cases] and 4.30(b) (21) [Examination of prospective jurors in criminal cases].) A potential juror should be excused if he or she will not give such an assurance. In 2002, the California Supreme Court held that trial judges in criminal cases should not give an instruction that told jurors it was their “obligation” to immediately advise the court if a juror refuses to deliberate, expresses an intention to disregard the law, decides the case based on penalty or punishment, or any other improper basis. According to the Supreme Court, jurors have no right to refuse to deliberate or to disregard the law, but such an instruction at the beginning of the case or before jury deliberations intrudes on the deliberative process and may stifle vigorous and vehement juror viewpoints during deliberations. (People v. Engelmann (2002) 28 Cal. 4th 436, 439, discussing former Cal. Jury Instructions Crim. No. 17.41.1. (1998 new)(6th ed. 1998).) The high courts have recognized that jurors “may not often deliberate well or even skillfully… [and] jurors can and do use faulty logic or analysis.” None of these things, however, rises to level of juror misconduct or even jury nullification. (People v. Keenan (1988) 46 Cal. 3d 487, 533.) Rather, jurors need to believe they can talk, argue and vigorously debate their positions and, if appropriate, change their minds without fear of exposure to the parties, their attorneys and the public. “Juror privacy is a prerequisite of free debate, without which the decision making process would be crippled…[P]articipants must feel completely free to dissect the credibility, motivations and just desserts of other people. Sensitive jurors will not engage in such a dialogue without some assurance that it will never reach a larger audience”…[T]he mere suggestion that the views of jurors may be conveyed to the parties and the public…understandably may cause anxiety and fear in jurors and distort the process by which a verdict is reached…” (People v. Cleveland, supra, (2001) 25 Cal. 4th at pp. 475-476 and 481-482.) The same logic holds true for civil jurors. (See People v. Williams, supra, 25 Cal. 4th at pg. 450, fn. 6.) If a juror refuses to apply the law as instructed by the

Greater Checks and Balances in the Civil Trial

While the public policies underlying appellate decisions for both criminal and civil cases in the area of jury nullification are the same, a civil jury’s power to engage in nullification or any misconduct is further limited by the trial judge’s power to grant a new trial and/or overturn, modify, or otherwise correct a civil jury’s verdict even after a jury has rendered its verdict. (See e.g., Code Civ. Proc. sections 656, et seq. for discussions of motions for a new trial, vacating a jury decision or judgment, directing the entry of a particular verdict notwithstanding the judgment, modifying a judgment, or ordering a new trial; People v. Williams, supra, 25 Cal. 4th at pg. 450, fn. 6.)

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NOVEMBER/DECEMBER 2009 SACRAMENTO LAWYER �

Litigation

View from the Civil Trial Bench

Cross Examination: Crowning Glory or Calamity

By Judge Judy Holzer Hersher

This article was presented at the Sacramento Chapter of the American Board of Trial Advocates (ABOTA) Masters in Cross-Examination program on November 20, 2009. It represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments are welcome and should be addressed to hershej@saccourt.ca.gov

come in with a set of scripted questions and assume they know how things will go. But things don’t always go as planned, and many attorneys fail to pick up the cues in time to adjust their examination. Attorneys also fail to pay attention to how the jurors are reacting to the questions and answers. An inattentive jury is a sign that the cross is not effective. If jurors sense that the cross-examiner is badgering a witness out of proportion to the significance of the testimony, you will see it in their faces and in their body language. Attorneys need to get their nose out of their scripted notes and questions, and both listen and watch the witness and jury respond. They should not be taking notes on what the witness is saying, as it detracts from the ebb and flow of cross. If necessary, a second person should be tasked with taking notes for later review. Learning how to go with the flow of unanticipated testimony also is part of the art of effective cross-examination, particularly cross-examination of any duration. Be prepared to be pulled off your game plan by unanticipated testimony. When that happens, the attorney needs to think fast on his or her feet, and consider whether asking some direct questions, and finding out where the evidence is leading, may in fact produce a gold mine. Sometimes, ignoring the new information is more dangerous than exploring it. Many courts today permit the jury to ask questions, which they will do if you leave seemingly important factual information undeveloped. If the testimony remains unwanted, counsel needs to be prepared with a plan to rein the witness in. Cross-examination is all about control—control of the witness and the response elicited from the witness both in positive and negative testimony.

ttorneys look forward to cross-examination as the pinnacle of their trial presentation. It is just as often their nadir. It is rare that a witness on the stand will admit to not telling the truth unless the witness has an explanation that benefits his story or rehabilitates his credibility. On occasion, cross-examination can backfire so dramatically, the attorney would have been better off not asking anything. Cross-examination requires instinct and quick thinking. If cross-examination is simply a repeat of the earlier direct testimony, it has served no purpose. If it fails to elicit damaging testimony, establish a lack of credibility or bias, or an inability by the witness to accurately relate the facts, it is a waste of time. And finally, all too often, the trial attorney asks a question which serves only to benefit the other side, making cross-examination a disaster. Many attorneys have been schooled in Professor and former jurist Irving Younger’s Ten Commandments on CrossExamination (see inset). The suggestions have endured the test of time. There are, however, skills other than those referenced in the list that contribute to a successful crossexamination. Further, there are times when ignoring the suggestions is necessary to improve the effectiveness of cross-examination. These skills include tuning in to both the witness and the jury to enhance the effectiveness of the process, and learning how to react flawlessly to unanticipated testimony with a combination of direct and leading questions. These additional skills are tougher to master. Get Your Head Out of Your Notes

Attorneys can become so self-absorbed during their cross-examination that they fail to pay attention to what the witness is actually saying in response to their question. Sometimes a witness will make an important statement or change their testimony, and attorneys will bypass a golden opportunity to score points because they simply are not listening. Also, although a witness may be saying one thing, body language or tone is saying something else. Counsel

SACRAMENTO LAWYER JANUARY/FEBRUARY 2010

Don’t Rely on Judges to Remedy Your Mistakes

Judges are gatekeepers. They decide what evidence comes in and what stays out. Except when necessary to protect constitutional or privacy rights, a court will sit idly by while hearsay, damaging evidence and otherwise inad22

missible evidence comes in without objection or when directly solicited. Judges are not there to protect the crossexaminer from prejudicial or highly inflammatory information that is actively solicited. Unless asked with a purpose, questions that begin with “why” or “how” typically open the

jury, it is also important to school your client about behavior while cross-examination is taking place. The client who smirks, laughs, slams on the table, makes faces or is otherwise demonstrating behaviors less than ingratiating is a distraction to the jury and a detriment to any points you are scoring on cross-examination. Don’t give the jury the opportunity to weigh how much they disbelieve the witness on the stand against how much they dislike the behavior of your client. Make sure your client knows how to act on cross-examination.

The 10 Commandments of Cross Examination By Irving Younger* • Be brief. • Ask short questions and use plain words. • Always ask leading questions. • Don't ask a question to which you do not know the answer. • Listen to the witness' answers. • Don't quarrel with the witness. • Don't allow the witness to repeat his direct testimony. • Don't permit the witness to explain his answers. • Don't ask the "one question too many." • Save the ultimate point of your cross for summation.

Personality Changes Are Fraught With Unintended Consequences

Most jurors anticipate that cross-examination will be pointed. At the same time, jurors have an innate sense of fairness, and don’t want to see people maligned or abused out of proportion to their culpability. It is important for the attorney to know him or herself and the demeanor and general sense they bring to who they are in a trial. A calm, calculating and understated direct examiner who turns into an impatient, ruthless cross-examiner may find the jury reacting to who they are in cross-examination rather than what the witness may say. The tactic may generate anger if the content of the information is not comparable to the antipathy generated. Changes in tone should be considered and handled carefully. Turn and look at the jury on occasion as you ask questions and as the witness gives his or her response. At the same time, listen to the way the witness answers and observe their demeanor. Be sure to gauge whether your level of disdain or cynicism is going over well or not and is in sync with the way the witness is responding.

(*Irving Young was a leading scholar on trial techniques, a former federal prosecutor, New York judge, Cornell University, Columbia, Harvard and Georgetown professor and author. He penned the Ten Commandments of Cross-examination.)

door to a whole host of unfiltered and possibly unintended information. Attorneys can get so wrapped up in the give and take of cross-examination that they surrender control to the witness. Escaping this common trap requires the attorney to both recognize he or she is off the game plan and to execute a strategy for getting back on track. There is no one right or “best” way to do this, but don’t rely on the trial judge to extricate you. The failure of a witness to answer a question should be seen as a chance to show that the witness is being deliberately evasive, lacks credibility, or is not really testifying from personal knowledge. A witness who is not responsive may present a golden opportunity to address these non-factual matters to a tactical advantage. An effective technique is to comment on the lack of a responsive answer, followed up by another question, e.g., “Ms. Witness, you have not answered the question. Let me rephrase it for you.” At the second, third or fourth juncture in which a non-responsive answer is given, try lowering the voice, slowing down the questioning, giving the jury gets the impression that you are doing everything you can, politely and professionally, to solicit your answer. Finally, interrupting a witness who is not answering the question after several attempts can be a more effective means of getting your point across to the jury than having the court intervene and admonishing the witness to answer.

Selectivity is Everything

There are exceptions of course, but the best cross-examination is choreographed so that the testimony ebbs and flows and builds to the most important question or questions—and then ends. Jurors’ attentiveness is not boundless. And while jurors may anticipate an exciting revelation pried from the lips of the witness early on, they very quickly lose focus. Impeaching a witness on a matter collateral to the real issues in the case is simply a waste of time and jury goodwill. Cross-examining with every misstep a witness has taken in a deposition is boring and makes the cross-examiner look petty, unless the real purpose is to show by a painstaking and well-timed cross that the witness is not to be trusted in anything he or she says. When there is really little of importance to impeach, but remaining silent would look ineffectual, ask a very limited number of questions that repeat certain key words or phrases or that sum up your theory of the case, and then sit down.

Your Client May Be Your Own Worst Enemy

In addition to being in tune with the witness and the 23

JANUARY/FEBRUARY 2010 SACRAMENTO LAWYER

Litigation

View from the Civil Trial Bench

Tough Economic Times Make for Reluctant Jurors: Making Jury Service Work for Everyone

By Judge Judy Holzer Hersher

This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments and suggestions for future articles are welcome and should be addressed to hershej@saccourt.ca.gov

hese are tough economic times for many, including jurors. With layoffs, a decrease in work hours and pay cuts, the effort to imbue jurors with a sense of purpose and pride in serving on a jury has never been more challenging. In addition to any loss of income, jurors today are worried about how their employer may view their commitment to work if they are selected for a lengthy jury. They are worried they won’t be able to get their work done and they also are worried that their employer may decide he or she can get along without them on a more permanent basis. Recognizing the daily obstacles that many jurors face, judges across the state are reporting that they are more sensitive to claims of financial hardship, while attorneys are analyzing, on a case by case basis, how current economic circumstances may affect juror selection, presentation, and verdicts. Each morning, a Sacramento County Superior Court judge addresses the hundreds of persons called each day to the courthouse as potential jurors. The judge typically provides a brief history of the jury system, and explains the importance of juries to our system of government and the real power each juror holds on a jury. At this early morning juncture, the jurors do not know whether they will be called to sit on a criminal or civil jury.

SACRAMENTO LAWYER MARCH/APRIL 2010 �

Once inside a courtroom, the prospect of serving on a civil or criminal case is made certain. Perhaps in part because of the number of criminal television dramas or the fact that our local newspaper devotes extensive resources to the reporting of crime and criminal cases in our courthouse, there is an expectation that jurors will serve on a criminal jury. And, of course, the practical reality here, as well as throughout the state, is that there are more criminal cases heard on a given day in the Sacramento County Superior Court than civil cases. While some jurors may not be happy with serving at all or may have personal reasons for not wanting to serve on a particular date or case, most jurors who find themselves being considered for a criminal case appreciate and accept the importance of the task they are being asked to perform. The right to be presumed innocent and the right to a jury trial to prove otherwise is a basic tenet of our democracy and is taught in elementary school as a founding principle of our democracy. People also seem to feel a personal or direct connection with the necessity of insuring that innocent people do not spend time in jail for crimes they did not commit and that guilty people are behind bars to protect everyone. The same ready sense of purpose, even in the best of economic times, may not be evident when a trial judge announces a civil case. There are a variety of reasons for this, including a 24

belief that people should work out their differences outside the courtroom, parties should take a certain amount of lumps in life and move on, individuals and/or their counsel have not adequately exhausted avenues of resolution and/or that civil litigation is just too costly and therefore a waste of time for everyone. Responding to these beliefs so that an appropriate jury panel is selected requires creativity and patience, and more so in the current economic climate. It is also essential to ensuring the long-term health of the jury trial system. The time the Court takes with each reluctant juror during voir dire is never wasted and is important. Even if that juror is eventually excused, the dialogue between the court, counsel and the juror provides an opportunity to educate the entire jury pool about the nature of the civil jury trial and its rightful place in a democracy. It also provides an opportunity to emphasize that selection as a juror is an honor, one that recognizes that the community is placing its trust in the juror’s intelligence, sense of fairness, and integrity to make important decisions that affect us all. In a typical juror panel of 45-60 jurors, only 14 or 15 will remain to hear the case. The rest become ambassadors of the jury system, when they talk with friends and family about the process they’ve experienced. Everyone involved in a civil jury

trial should be involved in educating the civil juror about the importance of the job. Attorneys convey this by the way they present themselves and their case, and in the respect they show for jurors, their clients, the Court and everyone in the courtroom. Judges do that by acknowledging that jurors are themselves judges for the period of time they serve, and that the job of a jury, which is unlike that of any bench officer in a jury trial, is to decide what happened from the facts they will hear and then to determine the outcome of the case. There are other simple ways to encourage service. Sharing, by way of allowing counsel to offer a mini opening statement before voir dire, can be used to peak interest in the disputed facts of the case. Sometimes simple analogies utilized by the Court emphasize the importance of civil trials and civil jury service. For example, jurors are all aware of the violence that ensues when one group of young men or women verbally or by action, “disrespect” others. The result is all too often gang violence and death. In the civil arena, slander or libel, which can be more public and widespread, can engender the same powerful emotions in those involved, but the civil jury system provides a mechanism to channel those emotions into a nonviolent contest. This is the price we pay for non-violence and perhaps a partial answer to the charge that Americans in general and Californians in particular are overly litigious. Providing civil jurors with context within which to value their service is an important step in the voir dire process. On a practical basis, the number one complaint jurors voice in good and bad economic times is that there is a lot of wasted time during a trial. Keeping in mind the current economic climate, it is important that everyone work efficiently to put on the trial. There are a number of different ways

this can be done, including the typical ones: stipulating to evidence that is undisputed, organizing documents for quick and easy use during trial, avoiding frivolous objections, for example. Counsel also should be open to starting trials at 8:30 a.m., rather than 9 a.m. or later, holding sessions on Friday, which are typically furlough days for state workers in Sacramento, and going later in the day when jurors

are present for trial and this doesn’t present a hardship for the jury. Every effort should be made to handle nonjury issues before the trial starts. Even with tough economic times and initially-reluctant jurors, if jury duty is handled properly, jurors will walk away from a civil jury feeling proud of their service and with a sense they have discharged an important civic duty.

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2008-2015

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MARCH/APRIL 2010 SACRAMENTO LAWYER �

Litigation

View from the Civil Trial Bench

The Privilege Against Self-Incrimination: Immunity Subject to Change at Trial

By Judge Judy Holzer Hersher

the current climate of personal and business losses, an increasing number of cases carry the potential for both criminal and civil prosecution. Even in the personal injury arena, the actions of the witnesses, including the plaintiff or defendant, may be seen as criminal, warranting jail time and not just money damages. In some of these cases the criminal action is filed first, either in federal or state court, while in other circumstances the civil case finds itself on the trial docket in advance of the prosecuting authority’s decision on whether or not to file criminal charges. Due to the high stakes nature of the criminal exposure, related civil cases tend to generate discovery battles and trial motions. However, judicial decisions made during discovery may not be dispositive at trial. Whether a witness will be granted a privilege not to answer a particular question by the trial judge will depend upon the facts at the time of trial, and the present likelihood of future criminal prosecution. Thus, how the privilege to refuse to testify and the separate privilege against self-incrimination, codified respectively in California Evidence Code sections 9301 and 9402, play themselves out on the eve of a civil trial can have a significant impact on the trial’s outcome. The judge at trial is faced with balancing several competing interests: specifically, (1) that of the party or witness who invokes the privilege against self-incrimination during discovery or trial to avoid exposure to criminal prosecution; (2) that of the party or

SACRAMENTO LAWYER MAY/JUNE 2010

parties who seek to complete discovery without being unduly prejudiced, particularly if the defendant who invoked the privilege during discovery later waives it and testifies at trial; and (3) the mandate to fairly and expeditiously dispose of civil cases. (Gov. Code, § 68607; Cal. Stds. Jud. Admin., § 2.1.) A party or other witness’s ability to successfully claim the privilege against answering certain questions at trial will depend in large part upon the specific question(s) they wish to avoid answering, the history of discovery, when the privilege was first claimed, and the likelihood of criminal prosecution against the party or witness as of the time of trial. If the Court rejects the application of a privilege, witnesses and parties in a civil case must choose either to answer the questions posed before the jury, or accept the civil consequences of their silence. This can include dismissal of their entire case or claim or defense and/or jail time for refusing to follow the Court’s instruction. (See, Shepard v. Superior Court (1976) 17 Cal.3d 107, 116 (overruled on other grounds in People v. Holloway (2004) 33 Cal. 4th 96, 131); Newson v. City of Oakland (1974) 37 Cal.App.3d 1050, 1055; cf. Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 712; Cal Const. Art I §§ 13 and 15, and contempt procedures under Code of Civil Procedure §§ 1209(a) and 1211(a)). Sometimes, the privilege is of no avail to the claiming party, as when he or she fails to assert or elects not to assert the privilege against self-incrimination during discovery, but then later 26

asserts the privilege at trial. In these instances, the previously disclosed information and/or testimony may in fact be admissible under Evidence Code § 240(a)(1)3, as the civil witness has now become “unavailable.” At the time of trial the Court’s inquiry is whether the document or its content or the oral testimony remains potentially or actually incriminatory or poses a reasonable danger of on-going self-incrimination that could result in future prosecution. If there is any doubt, the courts generally allow the privilege. (See, e.g. Warford v. Medeiros, (1984) 160 Cal.App.3d 1035, 1044; Blackburn v. Superior Court (Kelso) (1993) 21 Cal.App.4th 414.) Two Distinct Privileges, Only One of Which Applies to Civil Cases

In a criminal trial, a defendant who is arrested and charged with a crime has an absolute right under both the United States and California Constitutions not to be called to testify (i.e., he or she never gets on the stand and sworn in). The privilege is absolute, and the jury is told during instructions that a defendant’s decision not to testify and to remain silent in the face of all accusations cannot be discussed in reaching a verdict. (Evidence Code section 930; CALCRIM Instruction 355.) In a civil case there is no privilege to refuse to take the stand and testify. Evidence Code section 930 doesn’t apply. Under Evidence Code section 940, any party or witness can refuse,

but only after they are called to the stand and sworn in, and refuse to respond to specific questions. (Segretti v. State Bar (1976) 15 Cal.3d 878, 886.) Importantly, the civil jury gets to see the witness exercise the privilege, as well as evaluate the remaining testimony in light of the claim. Under California law, neither the court nor counsel is permitted to comment on the fact that a witness has claimed the privilege in the civil trial, nor comment on the credibility of the witness for claiming the privilege, even though he or she has done so right in front of them. (See Evidence Code § 913(a)4 ; People v. Holloway (2004) 33 Cal.4th 96-131.) At the same time, in closing, under Evidence Code section 4135, counsel can point out one side’s failure to offer or explain certain evidence in the case or any willful suppression of evidence. Thus, if a civil attorney is careful, there are ways to highlight the absence of certain evidence in the case without running afoul of the prohibition against specifically mentioning the privilege, specifically by arguing that certain inferences can be drawn from the other evidence in the case — or lack thereof — and not from the claim of privilege. (See CACI 203 (party having power to produce better evidence); 204 (willful suppression of evidence) and 205 (failure to explain or deny evidence).) Claiming the Privilege at Trial

The civil trial judge is often alerted to the fact the witness or party will claim the privilege as part of pre-trial motions, although it is permissible to notify the Court at any time before the witness testifies. (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045-1048.) Once alerted, the Court will conduct a hearing under Evidence Code section 402. Counsel will be asked to state, word for word, the question he or she wants to ask, the witness will advise the Court if she or he will answer, and then the Court will hear arguments related to granting the

privilege as to the specific question(s). The Court will consider a number of items. These include: the status of the person invoking the privilege (i.e., plaintiff, defendant or witness); whether the witness is an actual person or an entity, such as a corporation or public entity; the discovery requests and responses in the action to date; the nature of any ongoing or potential criminal proceedings; and other available types of immunity and statutes, such as Evidence Code sections 911 (no privilege not to testify unless a statute on point), and 912 (waiver of privilege). In addition, Government Code sections 18676 and 18677 state there is no privilege not to testify or to refuse to produce any document in investigations or hearings for the state civil service on the ground that the testimony or documentary evidence may tend to incriminate the witness, provided the witness is granted use and derivative use, or transactional immunity and does not engage in perjury. Before a final determination is made, the Court also will consider any grants of immunity given in the criminal case and any agreements by a prosecuting authority to offer grants of immunity arising out of testimony in the civil case as well. (See People v. Superior Court (Kaufman) (1974) 12 Cal.3d 421 (court has authority to grant immunity with the blessing of prosecution in a civil case); see also Daly v. Superior Court (1977) 19 Cal.3d 132, 145.) The person claiming the privilege has the burden of convincing the court that answering the question during trial would reasonably tend to incriminate him or her and the balance of all the factors the court considers (see discussion above) merits allowing the privilege. (Evidence Code § 404; Marriage of Sachs (2002) 95 Cal.App. 4th 1144-11501152; Warford v. Medeiros, supra, at 1044, Fuller v. Superior Court of Los Angeles County (2001) 87 Cal.App.4th 299, 305.) If there is no possibility of criminal prosecution, as when the statute of limitations has passed on a particular crime, or where a prior criminal trial (double jeop27

ardy) or acquittal would prohibit a future conviction, none of the privileges apply and the witness will be ordered to answer relevant questions. If, on the other hand, the witness is a defendant in a criminal case where the jury has found him guilty, but sentencing has not yet occurred, or if there is a criminal appeal or another related criminal trial pending, the privilege may still apply in the civil trial. (See, e.g., People v. Lopez (1980) 110 Cal.App.3d 1010, 1021 (criticized on other grounds); People v. Kizzee (1979) 94 Cal.App.3d 927, 935-939.) Only People Can Claim the Privileges—Not Corporations or Other Entities

As a general rule, only persons, and not corporations, partnerships, or other non-human entities can claim the privilege against self-incrimination. Directors, officers or shareholders, as well as custodians of records, cannot claim the privilege as a basis for declining to produce documents or records of their businesses or corporations, even when those records may tend to personally incriminate them. The rationContinued on page 18

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ale is that compelling a person to produce documents or business records is exemplary only of the acts of the nonperson, i.e., the corporation or business. (Braswell v. United States, (1988) 487 U.S. 99.) However, a careful reading of Braswell and its federal progeny shows that the rationale for the rule can fall apart, depending upon the unique facts and circumstances of a particular case. Distinctions have been made, and the right to claim the privilege has been upheld 3620cases American River Drive in federal where compelling someone to produce a Suitewould 260 incriminate her by the fact of its existence document and/orSacramento, link them toCA the95864 chain of evidence necessary for per(916) 974-8600 sonal prosecution. (See the dissent in Braswell v. United States, supra, at 119-130 and the cases cited therein. See also Commercial, United States v. Doe (1984) 465 U.S.Business, 605.) There is preceConstruction and dent in California for judges to fashion approachesClaims that deny a corporation any privileges, but grants the relevant priviDefects, Employment, leges to individuals associated with the entity. See, e.g, Avant! Insurance, Intellectual Corp. v. Superior Court of Santa Clara (Nequist) (2000) Property, Malpractice,79 Cal.App.4th 876 (the trial court has Probate, the abilityProduct to appoint of Liability an agent to furnish information available to the corporation). and Real Estate Disputes. Attorneys should be aware that special rules also apply to California government employees, who cannot invoke Calendar and further the privilege against self-incrimination underonline Evidence information at: www.malovoslaw.com. Code § 940 under certain circumstances and refuse to disclose or produce testimonial evidence they are required to keep in their official capacity as a public record. See e.g., Speilbauer v. County of Santa Clara (2009) 45 Cal.4th 704 (absent a contrary statute, a public employer, acting for noncriminal reasons, may demand answers from its own employee about the employee's job conduct and may discipline the employee's refusal to cooperate, without first involving the prosecuting authorities in a decision about granting formal immunity); Craib v. Bulmash (1989) 49 Cal.3d 475 (the privilege against self-incrimination does not apply when there is a legitimate regulatory aim not directed at activities or persons that are inherently criminal and requires minimal disclosure of information of a kind customarily kept in the ordinary course of business).

ale is that compelling a person to produce documents or business records is exemplary only of the acts of the nonperson, i.e., the corporation or business. (Braswell v. United States, (1988) 487 U.S. 99.) However, a careful reading of Braswell and its federal progeny shows that the rationale for the rule can fall apart, depending upon the unique facts and circumstances of a particular case. Distinctions have been made, and the right to claim the privilege has been upheld in federal cases where compelling someone to produce a document would incriminate her by the fact of its existence and/or link them to the chain of evidence necessary for personal prosecution. (See the dissent in Braswell v. United States, supra, at 119-130 and the cases cited therein. See also United States v. Doe (1984) 465 U.S. 605.) There is precedent in California for judges to fashion approaches that deny a corporation any privileges, but grants the relevant privileges to individuals associated with the entity. See, e.g, Avant! Corp. v. Superior Court of Santa Clara (Nequist) (2000) 79 Cal.App.4th 876 (the trial court has the ability to appoint of an agent to furnish information available to the corporation). Attorneys should be aware that special rules also apply to California government employees, who cannot invoke the privilege against self-incrimination under Evidence Code § 940 under certain circumstances and refuse to disclose or produce testimonial evidence they are required to keep in their official capacity as a public record. See e.g., Speilbauer v. County of Santa Clara (2009) 45 Cal.4th 704 (absent a contrary statute, a public employer, acting for noncriminal reasons, may demand answers from its own employee about the employee's job conduct and may discipline the employee's refusal to cooperate, without first involving the prosecuting authorities in a decision about granting formal immunity); Craib v. Bulmash (1989) 49 Cal.3d 475 (the privilege against self-incrimination does not apply when there is a legitimate regulatory aim not directed at activities or persons that are inherently criminal and requires minimal disclosure of information of a kind customarily kept in the ordinary course of business).

1. California Evid. Code section 930 reads: To the extent that such privilege exists under the Constitution of the United States or the State of California, a defendant in a criminal case has a privilege not to be called as a witness and not to testify. 2. California Evid. Code section 940 reads: To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him. 3. California Evidence Code section 240 reads: (a) Except as otherwise provided in subdivision (b), “unavailable as a witness” means that the declarant is any of the following: (1) exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant. … 4. California Evidence Code section 913: (a) If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and

SACRAMENTO LAWYER MAY/JUNE 2010

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

Litigation

VIEW FROM THE CIVIL TRIAL BENCH: “With All Due Respect”…Not Really By Judge Judy Holzer Hersher

have all heard it used in the courtroom, and many of us, at one time in our careers, have said it in Court. Some have used it in its literal meaning, but most, including attorneys, judges, criminal defendants and even movie characters have used it to convey the exact opposite. Preface an argument in front of a trial judge with the phrase “with all due respect,” and the judge will expect an insult. This is because the phrase is commonly used to provide cover for a statement that expresses disdain for the position the judge has adopted by his or her ruling, the robe, or the person wearing it. It is less and less used to convey a feeling of appreciative or deferential respect or esteem, its literal meaning. Evidence of the current use and meaning of the phrase can be found everywhere—in reported appellate decisions and on the internet, as well as in courtrooms. One need look no further than a widely distributed clip on Youtube of Will Ferrell playing an irreverent NASCAR driver Ricky Bobby in Talladega Nights, to understand why judges react negatively to the phrase. In one scene from the movie, Ricky Bobby has just won a race during which he made an obscene gesture that was caught on television. His sponsor, Larry Dennit Jr., played by Greg Germann, con-

SACRAMENTO LAWYER JULY/AUGUST 2010

fronts him in the winner’s circle and the following dialogue ensues: Dennit: “Ricky, early word out of NASCAR is your little obscene gesture is going to cost you 100 points. Do you know how much that costs us in sponsorships?” Ricky Bobby: “With all due respect Larry, I had no idea you had gotten experimental surgery to have your b_lls removed.” Dennit: “That’s incredi…What, what did he, ..what did he say? What was that?” Ricky Bobby: “Well, I said it with all due respect.” Dennit: “No, no, it that doesn’t mean you get to say whatever you want to say to me.” Ricky Bobby: “Yes, sure as heck does.” Dennit: “No, no it doesn’t mean that. Ricky Bobby: “Yes, it does. It says so in the Geneva Convention, look it up.” Believe this is just Hollywood? Compare the above dialogue to that reported in People v. Stephen Walter Pigage (2003) 112 Cal.App.4th 1359, 1370-1375. In Pigage, the defendant was tried and convicted on various drug charges. During the trial, a “heated debate” took place between the judge and the prosecuting attorney. The defendant had failed to appear on the second day of trial, and counsel and the court discussed how the judge would handle that issue in front of the jury. Specifically, court and counsel discussed whether the court should instruct the jury to ignore the defen30

dant’s absence or whether it should give an instruction that flight could be considered by the jury as evidence of the defendant’s guilt. The decision contains an extensive discussion about the alleged reasons for the defendant’s absence. Acknowledging that there was an argument for giving the jury an instruction that showed flight as evidence of guilt, the Court reasoned that under the unique circumstances of the case, it would not do so and would instead instruct the jury to disregard the defendant’s absence in reaching its verdicts. Beginning at page 1370, the appellate opinion includes a verbatim recitation of the colloquy between the deputy district attorney (Mr. Flory), who was not happy with the court’s decision, the court and defense counsel. Deputy District Attorney: “With all due respect, your honor, I’m still going to argue—not the flight instruction, obviously—but I’m going to argue consciousness of guilt for him not being here. I have pulled cases for the court which show that [sic] is proper, and I am just letting everyone know I’m arguing for it.” [Defense counsel]: “Your honor, I would object to that argument and request the court to admonish the prosecution not to argue that point.” The Court: “I think under my ruling that would be improper argument.” Deputy District Attorney: “I’m still going to argue it, with all due respect.”

The Court: “Well, in the face of my ordering you not to, Mr. Flory?” Deputy District Attorney: “Yes.” The Court: “I think that’s unwise.” Deputy District Attorney: “I have cases to back me up in this one, your honor, with all due respect—I really do mean that. But by limiting me from arguing something which the Court of Appeal says I can argue—is I don’t want to say a bad ruling. I do mean with all due respect.” The Court: “Well, Mr. Flory, let me just ask you to review that in your mind, because I think violating a direct order of the court, regardless of what you think the cases say, is improper on your part, and I don’t think you need to do that in this case.” Deputy District Attorney: “I’ll think about it.” There is no mistaking the true import of the deputy district attorney’s argument. Mr. Flory apparently believed, like Ricky Bobby, that if he said the magic words—with all due respect—he was immune from contempt of court, and that he could express his contempt by cover of the phrase. The Pigage court disagreed. The record was forwarded to the California State Bar for review and possible discipline by order of the appellate court. (People v. Pigage (2003) 112 Cal.App.4th at pgs. 1374-1375.) In People v. Uecker (2009) 172 Cal.App.4th 583, the defendant was accused of stalking a female real estate agent by leaving over 30 increasingly agitated and haunting messages on her telephone. Danny Greg Uecker bragged of a long history of rape. He reportedly told his

cellmate that he would get into the victim’s lives by drawing them in “under false pretenses.” One of his final messages to the victim was punctuated with the following: “So, with all due respect, I’d like to finish this with you. But I want to handle this with you—I want you to handle this or at least handle my issues, anyway.” (Id. at pgs. 589-590.) In context, there was of course nothing respectfu l about the defendant’s import, but his use of the phrase was consistent with those who believe that they can hide their disrespect, anger or contempt with four words. Context is everything. While some might read it otherwise, the way an appellate decision is crafted reveals whether the stated “with all due respect” by its judicial author is consistent with its literal meaning or not. In short, there are times when judges use the phrase more as cover than polite expressions of deference. In Jimenez v. Superior Court of San Diego County (2002) 29 Cal.4th 473, 484-493), in a biting and hard hitting concurrence and dissent, a California Supreme Court justice criticizes the majority for “fail[ing] to recognize, much less resolve on any principled basis, the tension generated by resorting to strict products liability despite …alternative remedies and the total absence of safety concerns.” Jimenez holds that the manufacturer of windows for mass produced homes can be held strictly liable in tort for harm from any defective windows and resulting physical damage to other parts of the house. The author writes separately that the majority “blindly defaults to appellate court decisions without searching analysis.” In discussing certain lower appellate court decisions, these courts too are taken to task for their faulty legal analyses. The stinging 31

tenor of the separate opinion is punctuated at one point with the phrase “with all due respect,” yet in context it leaves little room for deferential regard. (See that portion of the decision that begins with “In a single paragraph and without significant analysis (maj. Opn., ante, p. 484) the majority sharply narrows the economic loss rule and thereby substantially erodes the demarcation between contract and tort law in California…”) See, also, Nolan v. City of Anaheim (2004) 33 Cal. 4th 335, 355, wherein the California Supreme Court considered whether a law enforcement officer was eligible for disability retirement. The California Public Employees’ Retirement System (CalPERS) filed an amicus brief and argued that any effort to come up with a general description of “usual duties” for the job was impossible and would require assumptions that simply would “not be administrable.” The Court was clearly dismissive of the CalPERS position, described its legal argument as really nothing more than a “straw man” concept devoid of merit, and pointed out that other agencies routinely come up with usual job duty descriptions. Although the Court stated its opinion “with all due respect” to the expertise of CalPERS, there was little admiration or esteem in context. There are, of course, instances where attorneys and judges use the phrase in its intended and literal sense, but they are lost in the din of modern usage. If trial attorneys want to be heard on the merits of their arguments, they should punctuate their arguments with incisive but respectful straightforward legal and factual analyses. This will focus the attention of the trial judge on the issues, rather than a false gesture of respect. JULY/AUGUST 2010 SACRAMENTO LAWYER

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

Litigation

VIEW FROM THE CIVIL TRIAL BENCH:

Prevailing Party Determinations Post Goodman v. Lozano — A Cautionary Tale for Plaintiffs and Their Lawyers By Judge Judy Holzer Hersher

This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments should be addressed to hershej@saccourt.ca.gov

oodman et al., v. Lozano et al. (2010) 47 Cal.4th 1327 (“Goodman”) is a cautionary tale for plaintiffs who have good faith settlements in hand and then proceed to trial against the remaining defendant(s). Plaintiffs may, in these circumstances, win a monetary verdict in their favor, but ultimately lose the entire award-- and more-- if the verdict is reduced to zero at judgment because of prior settlements. Under these circumstances, they also may wind up paying the other side’s attorney’s fees and costs. Who gets their costs and attorney’s fees after trial starts with an analysis of various statutes. Some, but not all of these statutes, identify the person or entity entitled to the additional award as the “prevailing party.” (See and compare Code of Civ. Proc. Sections 1021 through 1032. See also Civil Code section 1717.) Under Code of Civ. Proc. section 1032(a)(4)1, the “prevailing party” is entitled to recover their costs after trial “as a matter of right.” Thus, the definition of prevailing party is crucial to any argument made by counsel, and any analysis made by the trial judge before awarding costs and attorney fees. What may appear simple at first to determine, that is who is the prevailing party, often is complicated by a variety of factors, including whether the recovery is based on contract or tort or a combination of both, whether there are good faith settlements, and the status of various pleadings and adjudications at key junctures in the life of a lawsuit. While Goodman clarifies one circumstance under which a plaintiff with a verdict in its favor can wind up with judgment of zero and paying the other side’s costs and fees, the case leaves more questions than it answers. Goodman focuses on Code of Civil Procedure Section 1032(a)(4), and specifically the right of a party to be deemed a “prevailing party” if they have obtained “a net monetary recovery.” Goodman interprets the phrase “net monetary recovery” in the context of litigation that involves both tort and contract theories stated against different parties, and court approved “good faith” settlements under Code of Civil Procedure sections 877 and 877.6.2 In Goodman, Randall Goodman and Linda Guinther (“Plaintiffs”) contracted to purchase a newly constructed house in Laguna Beach from Jesus and Natalia Lozano (“Lozano Defendants”) for $1.25 million. Things did not go well. Plaintiffs eventually sued the Lozano

Defendants, Alberto Mobrici and AMPM Construction. The Plaintiffs also sued their architect and the real estate broker for construction defects, negligence, fraud, breach of warranties and negligent misrepresentation. In addition, Plaintiffs named the Lozano Defendants alone in a separate cause of action for breach of a contract that provided for attorney fees to the ‘prevailing party’ after litigation. Other than telling the reader the fee provision was “bilateral”, the decision does not provide the wording of the entire provision. All but the Lozano Defendants settled before trial with the Plaintiffs for sum total of $230,000.00.3 The case was tried to the trial court without a jury, and the judge found in favor of the Plaintiffs and against the Lozano Defendants in the amount of $146,000. The trial judge then compared his $146,000 verdict in favor of Plaintiffs to the good faith settlements totaling $230,000.00 and determined that the defendants had achieved their objectives of establishing less in damages than Plaintiffs sought, Plaintiffs having had substantial time post settlement to assess their remaining case. The judge then offset the verdict by the relevant settlement amounts, and ultimately entered a zero judgment for Plaintiffs. There is no discussion by the Supreme Court of the trial judge’s specific reasoning, given the separate awards under the contract and tort theories. The zero judgment was entered even though the trial judge awarded $64,000 of the $146,000 verdict in damages against the Lozano Defendants based on the contract cause of action. The trial court then identified the Defendants Lozanos as the prevailing parties, and awarded them $132,000 in attorney fees and $12,000 in costs under the contract. Six Appellate Cases Are No Longer Good Law

The appellate court, and ultimately the California Supreme Court, affirmed the award to Defendants as the prevailing parties. In doing so, the Supreme Court expressly stated that they were concerned “with the first category of section 1032(a)(4),” or when, as a matter of right, the prevailing party is “the party with a net monetary recovery.” (Goodman v. Lozano (2010) 47 Cal.4th at pg. 1333.) In reaching its conclusion, the high court disapproved of 35

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Litigation Code of Civil Procedure section 1021 and Civil Code section 1717, the language of the attorney’s fee and cost provision is critical to the determination of when a party is the prevailing party for purposes of an award under a written agreement.6 Several appellate decisions affirming or denying an award of costs under a contract turn on what is meant by the phrase “on the contract” or “arising out of the contract” or “brought to enforce the contract.” (See e.g., Santisas v. Goodin (1998) 17 Cal. 4th 599,608 (when an agreement is broad enough, the prevailing party in litigation may be entitled to attorney fees, not only for causes of action based on the contract, but also for causes of action sounding in tort); cf., Gil v. Mansano (2004) 121 Cal.App.4th 739,745; Exxess Electronixx v. Heger Realty Co. (1998) 64 Cal.App.4th 698; and Loube v. Loube (1998) 64 Cal.App.4th 421, 430 (on the other hand, a narrowly drawn attorney fee provision for the payment of fees for an action brought to enforce the terms of the parties agreement cannot be read as a contractual agreement to award fees in an action sounding in tort).) The one sentence footnote response to the Plaintiffs argument from the Supreme Court is as follows: “Moreover, we reject [Plaintiffs] contention that we must construe section 1032(a)(4) in light of Civil Code section 1717. (See Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1143 [“Rather than focusing on who receives the net monetary award, section 1717 defines the prevailing party as the one who recovers ‘a greater relief in the action on the contract.’”] The quote and distinction addressed in the footnote is not particularly illustrative of the high court’s reasoning. To begin, Sears v. Baccaglio begins with the recitation by the First District Court of Appeal that the opinion “considers a question which routinely troubles trial courts attempting to identify the “prevailing party” for the purpose of awarding attorney’s fees….Periodic legislative modification…has created uncertainty over the extent of trial court discretion to award fees” in complicated cases. The appellate court concludes the statutes “can be reconciled to inform the entire process of fee allocation….” It holds that the trial court “retains ultimate discretion when awarding attorney’s fees, not only as to the amount but also in the choice of the statutory basis for the award and in the identification of the prevailing party.” (Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1143.)(underline added.) (See also the dissent in Sears at pg. 1160-1167 (The majority’s painful attempt to justify the award is not only wrong, but “destined to exacerbate the confusion that already exits in this area of the law.”)) It would have been more helpful if the Supreme Court had expanded their analysis in Goodman to explain more fully the difference it perceives exists between the application of CCP 1032 and

and/or distinguished the holdings of six appellate cases.4 The Supreme Court specifically rejected the reasoning of the appellate court in Wakefield v. Bohlin (2006) 145 Cal.App.4th 963 that “any success in pressing…claims against the losing party results in a net award.” The high court pegged this as an “amorphous concept of success…contrary to the language of the statute.” (Goodman v. Lozano (2010) 47 Cal.4th at pg. 1334.) A unanimous Supreme Court concluded that under the facts in this case: (1) the pre-trial settlements of co-obligors mutually subject to contribution rights reduced dollar for dollar the verdict awarded plaintiff(s) against any remaining defendant(s) in the subsequent trial; and (2) since the subtraction reduced the verdict at trial to zero dollars, then the judgment entered by the Court was, in fact, zero by operation of law; and importantly, (3) there was no net recovery for Plaintiff(s). (italics added) It therefore follows, according to the Supreme Court in Goodman, that if there is no net recovery for a Plaintiff, he or she is not entitled to recover their costs as a matter of right under CCP 1032(a)(4). And finally, if costs are not available as a “matter of right” under any other circumstance stated in 1032(a)(4), the trial court can exercise its discretion and determine who is the prevailing party, who gets an award of costs and in what amount, and perhaps attorney fees. (Goodman v. Lozano, supra, (2010) 47 Cal.4th at pg. 1338, fn. 4.) What is not fully explored in the decision, other than by brief reference in another footnote, is how the attorney’s fee and cost provision in the particular contract affected the trial judge’s decision. Counsel at oral argument apparently argued that under the language of Civil Code section 1717 and the contract itself, the trial judge should have made Plaintiffs the prevailing parties as they recovered the greater relief on the contract.5 We also don’t know if the contract provision was broad enough to cover fees and costs incurred in prosecuting the tort, as well as contract causes of action. Specifically, under

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

SACRAMENTO LAWYER NOVEMBER/DECEMBER 2010

rules adopted under Section 1034. 2. Goodman v. Lozano was decided in light of Code of Civil Procedure section 877 subd. (a) and (b) (Effect of Release, Dismissal or Covenant Not to Sue) and Code of Civil Procedure section 877.6 (Determination of Good Faith Settlement) as all the defendants were apparently co-obligors mutually subject to contribution rights on many of the theories. Under CCP section 877, a good faith settlement not only forecloses other defendants from seeking contribution or comparative indemnity from the settling party, but it affords the non-settling defendant a dollar for dollar offset of liability to the plaintiffs. (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858,873.) CCP 877, in relevant part, reads: “Where a release, dismissal with or without prejudice, or a covenant not to sure or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect: (a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, in the amount of the consideration paid for it, whichever is the greater.” CCP 877.6 lays out the procedure for getting a settlement approved as a good faith settlement, and specifies those conditions under which further claims against the settling party are barred. 3. Before trial, the Plaintiffs rejected a Code of Civil Procedure section 998 offer of $35,000 from the Lozano Defendants. Nothing in the decision tells us about the nature of the offer, that is, whether the offer offered to have judgment entered on all theories stated against the Defendants or just the breach of contract, for example. 4. The cases disapproved of and/or distinguished are: Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 982–983 (Wakefield); Great Western Bank v. Converse Consultants, Inc. (1997) 58 Cal.App.4th 609, 613;(Great Western); Zamora v. Shell Oil Co. (1997) 55 Cal.App.4th 204, 213–215;(Zamora); Pirkig v. Dennis (1989) 215 Cal. App. 3d 1560, 1566 (Pirkig); see also Syverson, supra, 171 Cal. App. 3d at page 113 (interpreting prior version of § 1032); Ferraro v. Southern Cal. Gas Co. (1980) 102 Cal. App. 3d 33, 52–53 (Ferraro) (same). 5. Civil Code section 1717 reads, in relevant part: (a) “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the pa rty specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs…Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit…(b)(1) The court…shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragra ph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this action...” 6. CCP section 1021 (Attorney’s Fees as Matter of Agreement) reads as follows: “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.”

Civil Code section 1717 and Code of Civil Procedure 1021, and when one applies over the other, and/or, simply held, if it so believes, that trial judges have the discretion, as stated in Sears, to choose which statutory basis they believe is appropriate in identifying the prevailing party. Then, I submit, this key issue would be put to rest. The Supreme Court did neither. Even When Net Recovery is Zero, Plaintiff May Still Prevail on Costs

There is a lot left unexplained in Goodman. We do know, however, that a party who winds up with a zero “net monetary recovery” is not foreclosed from being awarded its costs and fees under CCP 1032(a)(4). They may be entitled as a matter of right to their costs and fees under one of the other categories specified in CCP 1032.4(a). If none of the specific categories apply, the Court clarifies–although again by footnote–that the trial judge retains discretion to determine the prevailing party. (See fn. 4, Ibid, page 1338: “…Our holding today is simply that a plaintiff whose damage award is offset to zero by a prior settlement does not categorically qualify as a prevailing party (“the party with a net monetary recovery”) as a matter of law. Unless a party otherwise fits into one of the remaining three categories of prevailing party under section 1032(a)(4), a trial court retains the discretion to make the determination as to who is and is not a prevailing party under CCP section 1032(a)(4).”) The test on appeal remains whether a trial judge abused his or her discretion or exceeded the bounds of reason in making its determination. (Goodman v. Lozano, supra, (2010) 47 Cal.4th at pg. 1339.) 1. CCP § 1032. (Recovery of costs by prevailing party as matter of right) reads as follows: (a) As used in this section, unless the context clearly requires otherwise; (1) "Complaint" includes a cross-complaint.; (2) "Defendant" includes a cross-defendant or a person against whom a complaint is filed; (3) "Plaintiff" includes a cross-complainant or a party who files a complaint in intervention.; (4) "Prevailing party" includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the "prevailing party" shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. (b) Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (c) Nothing in this section shall prohibit parties from stipulating to alternative procedures for awarding costs in the litigation pursuant to 37

NOVEMBER/DECEMBER 2010 SACRAMENTO LAWYER

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

Litigation

By Judge Judy Holzer Hersher

VIEW FROM THE CIVIL TRIAL BENCH: “Reliable Authority” and Cross-Examination of Experts under California Evidence Code Section 721(b)(3): What We Have (Not) Learned

This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments should be addressed to hershej@saccourt.ca.gov

1997, the California State Legislature amended Evidence Code section 721 to add a new subsection (b)(3). The new section allows an expert witness to be cross-examined at trial by use of a “publication” that “has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.” (italics added) (Stats. 1997, c. 892 (SB 73) §11.) Before the change, Section 721(b)(1) and (2) expressly stated that expert witnesses could be cross-examined based on a publication which the witness relied on or considered, and any publication admitted into evidence. However, the statute was silent as to whether an expert could be cross-examined based upon a publication that he did not rely. The Law Revision Commission Comments to the new section noted “considerable confusion in the California decisions” with respect to that distinction, citing conflicting authority going back over 100 years. (Compare, Fisher v. Southern Pac. R.R., (1891) 89 Cal. 399 and Bailey v. Kreutzmann, (1904) 141 Cal. 519.) The legislative committee comments on SB 73 suggest that the policy concern was not necessarily conflicting appellate opinions, but rather the proliferation and availability of too many pseudo-experts and “junk” science. Thus, the purpose of the amendment was to allow for testing of these opinions against the more established or more modern or reputable publications.1 The change was also designed, at least in part, to reduce lit-

Judicial notice is governed by Evidence Code sections 451 and 452. Under section 451(f), a court must take judicial notice of “facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the

subject of dispute.” Under section 452 (g) and (h), a court may take judicial notice of facts and propositions that are of “such common knowledge …that they cannot reasonably be the subject of dispute and/or facts that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” However, neither of these statutes applies easily to expert publications or opinions that, by definition, are not generally or commonly known. Further, it is unlikely that a trial judge would consider herself educated enough to determine admissibility by these standards based on personal knowledge. In fact, the notes accompanying the statutes admonish judges not to admit evidence upon request for judicial notice just because he or she thinks they know the information. (See, Comment, Assembly Committee on Judiciary, to Evid. Code section 452.) It is also unlikely that in the expert intensive areas of medicine, computers, psychiatry and psychological syndromes, manufacturing, cutting edge science, etc., that this provision is likely useful. Any request for judicial notice would require compliance with either Evidence Code section 453 (compulsory judicial notice upon request so long as the party furnishes the court with sufficient information to enable it to take judicial notice) and/or section 454 (information that may be used in taking judicial notice includes any source of pertinent information, including the advice of persons learned in the subject matter,

JANUARY/FEBRUARY 2011 SACRAMENTO LAWYER

igation costs by permitting these works to be used in cross-examination, thereby reducing the time and expense of having to call another expert to battle the opposing expert.2 Regardless of the impetus for the language change, many issues remain with respect to how to apply the rule in a California courtroom, and the jury is still out on how efficient and cost effective in application it is. For example, how does a Court decide when it should take “judicial notice” of a publication or treatise’s “established reliability?” And if not by judicial notice, by what procedure in response to a challenge as to the “reliable” nature of the “authority,” does a court and counsel resolve such a challenge? What is an “authority” anyway? Is it a person, an article, a book or a periodical with routine publication dates? When, if ever, does the jury get involved in this decision-making? Can something be a reliable authority, and yet not be appropriate for cross-examination of a particular expert witness? More than a decade after enactment, there is not a single published appellate case that provides guidance into the nuances of the subsection.3 Use of Impeaching Material by “Judicial Notice”

Litigation whether or not furnished by a party). In short, a request to take judicial notice would likely require a hearing, potentially of some length, even if the request is made by way of stipulation. Who Really Gets to Establish “Reliability?”

authoritative by the first oncologist is outdated or that “younger” or “newer” specialists may have it in their library, but do not often refer to it? If this conflicting testimony is known in advance, one or both sides may try to call in a third or fourth specialist to establish or refute the reliability of the publication. Ultimately, the trial judge will have to decide that “reliability” has or has not been sufficiently established for a particular line of cross examination and cut off further evidence on the publication or instruct the jury that it makes the call on whether a particular publication is in fact a reliable authority. If the latter is the case, is that really what the statute intended, i.e., have a lay jury determine what is reliable authority for an expert?

Is one expert enough to establish a publication as “reliable”? Section 721(b)(3) states that the publication can be established as reliable by the testimony or admission of the witness being cross examined or by “other testimony.” If the testimony establishing the reliability of a publication is uncontested, regardless of the source of the testimony, then the statute is relatively easy to apply. However, experts sometimes disagree as to the reliability of a publication or disagree as to each other’s qualification to determine which publications are reliable within a specialty. For example, a general pediatrician is alleged to have missed a diagnosis of early onset cancer in a young patient. Plaintiff’s expert pediatric oncologist testifies that a particular publication is considered “reliable authority” by doctors in his subspecialty. Can the plaintiff’s attorney cross-examine the general pediatrician with this otherwise reliable authority for specialists even if, under the standard of care accepted in general pediatrics, a general pediatrician would not have knowledge of that authority? If the ultimate issue is whether the pediatrician made a negligent diagnosis, would cross examination based on a specialty publication unduly prejudice the jury by implying that the pediatrician is sloppy or lazy? A trial judge might deny cross examination based on such authority for reasons of fairness, despite the reliability of the authority from a scientific perspective. Another dilemma would arise if a second pediatric oncologist testifies that the publication identified as

What are the necessary or essential words or phrases an expert must use—or avoid—to establish a publication as “reliable authority?” When would the Court be required to consider something like the Kelly-Frye test used by courts to establish the reliability of a new scientific technique, i.e., the publication has general acceptance in the relevant scientific or medical community?4 Can an expert establish his own publications as reliable authority? There is no published case law that answers any of these questions. Several unpublished cases have addressed the question of reliability for purposes of cross-examination by looking at a variety of factors, some of which merit reliability, while others do not. These include whether the treatise or article (1) has been published or peer reviewed; (2) is in the process of being peer reviewed or published; (3) is in a long line of highly regarded publications by an otherwise

SACRAMENTO LAWYER JANUARY/FEBRUARY 2011

What Facts Establish the Threshold Burden of “Reliability?”

generally reliable expert or authority; though the publication has not yet been fully vetted in the field; (4) whether the publication has been described in words by the offering expert as a “worthy publication,” or something that persons in the field “might want to read; (5) whether it has been vetted by an expert with sufficient credentials to establish it as “reliable authority”; and (6) whether the witness offering the publication as reliable authority is a disclosed expert for purposes of trial or a percipient witness.5 These cases provide a window into the thinking of our appellate courts, but do not provide a framework or key to analyze the myriad of circumstances that can arise under the subsection. Can Attorneys Stipulate to “Reliable Authority”?

Most trial judges embrace stipulations because they expedite trials and because, upon appeal, neither side can complain that the court made an erroneous ruling. Thus, is it simply enough to have all attorneys stipulate that a particular source is a “reliable authority,” or is something more required by the Court to avoid the presentation of junk or untested science in the courtroom? Given the legislative intent indicated by Evidence Code section 721(b)(3), a trial judge appears to have discretion to require proof of “reliability” before allowing cross examination, despite the willingness of counsel to stipulate on that issue. When Must Parties Disclose their Intent to Cross-Examine with “Reliable Authority”?

While civil experts are often asked questions at deposition about contrary authority, parties are under no compulsion to disclose the use of impeaching materials prior to the time of trial. Learning about a purported “reliable authority” for the first time at the actu-

Litigation al time of use may well necessitate a hearing outside the presence of the jury on the factual basis for the assertion. Depending on the judge’s determination, a party may not be permitted to use the treatise to cross-examine, and therefore may not have time to secure an expert for impeachment. Or, a party may have to scramble to read and/or study the particular publication and provide it to their opposing expert for further testimony on short notice. If the offered “reliable authority” is controversial, the dispute may cause trial delays and undue consumption of time under an Evidence Code section 3526 objection. Consequently, fundamental issues of fairness and efficiency in civil trials weigh in favor of disclosure before use with a witness at trial.7 Under Evidence Code sections 402, 403 and 405, if the preliminary fact of “reliability” is disputed, the trial court has several options. It can find, either by stipulation or after an offer or proof or hearing, that the publication is reliable and allow its use with no comment. (Evidence Code sections 402 and 405) Or, the trial court can find that there is enough evidence to let the jury hear it described or used as a reliable authority, but instruct the jury to disregard it if they determine, after all the evidence, that it is not reliable authority under the circumstances. Again, the latter course may defeat the articulated purpose of the rule, i.e., keeping junk or antiquated or untested science from tainting a jury. While awaiting appellate guidance, trial judges will exercise their discretion informed by the words of the statute and how and when the parties present these issues. 1. See, e.g., comments contained in the Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 73 (19971998 Reg. Sess.) as amended August 25, 1997, p. 6 (Sen. Rep.); “It may be precise-

ly those reliable authorities the expert has not considered that will provide the best cross-examination of that expert…Current law encourages gamesmanship by allowing ‘pseudo’ experts to testify as to a matter and then avoid questioning on how his or her views differ from reliable treatises simply by ignoring the existence of the more learned by contrary treatises.”) (See also Assem. Com. on Judiciary, Analysis of Sen. Bill No. 73 (1997-1998 Reg. Sess.) Jul. 16, 1997, p.6.2); The requirement that the treatise be established as reliable authority was intended to “ensure[] that outdated or otherwise unreliable treatises will not be used inappropriately to discredit an expert’s opinion.” (Sen. Rep., supra, p. 6.) 2. Senate Rules Comm., 1997-1998 Reg. Sess., S. Floor Analyses on S.B. 73. 3. At least one law review article has considered the confusion and discusses the need for more consistency and thus appellate guidance. See, Payne, Leah Beth, “Establishing Reliability under California Evidence Code section 721(b)(3): Why California’s Evidentiary Law Could Use More Consistency, 45 Cal. W. L. Rev. 475 (Spring 2009). 4. See, e.g., People v. Leahy (1994) 8 Cal. 4th 587, discussing the continuing validity of the Kelly test (People v. Kelly (1976) 17 Cal.3d 24 ; Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014 )in California and the standards by which a trial judge decides whether a new scientific process or standard should be allowed as evidence. 5. See, e.g., People v. Marentez, 2010 Cal.App.Unpub. LEXIS 1257; Kevin Trannguyen v.Gerald Laska, 2004 Cal.App.Unpub. LEXIS 10165; Lopez v. Rashidi, 2004 Cal. App. Unpub. LEXIS 849; and Stoll v. Bush, 2003 Cal.App.Unpub. LEXIS 11115; Rosen v. Regents of the University of California 2007 Cal.App.Unpub. LEXIS 9172. 6. Evid. Code § 352. Discretion of court to exclude evidence: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. 7. Other considerations will come into play in a criminal trial, which are not addressed by this article. 41

President’s Message continued from page 4 Chief Justice of California. Her experience and talent will certainly foster additional cohesiveness between the three branches of government and within the California judiciary. This is an opportune time for the Bar to provide more active support in areas of significant bench-bar concern, such as access to justice and maintaining a strong, independent judiciary. It is also an opportune time for the Bar to serve as a regular conduit of communication on other issues affecting the Sacramento legal community and the judiciary. I hope to initiate formal mechanisms to do so in the year ahead. Intra-Bar Collaboration: The Sacramento County Bar Association bears the honor and responsibility of being the leader of Sacramento’s volunteer legal community. Our association includes 10 standing committees, 16 practice sections, 10 affiliate bar associations, and 2,103 members who practice in all courts, agencies and other forums across California. We represent a broad diversity of backgrounds and experiences. Together we have unlimited potential. Together, we can lay the foundation for another 93 years of service. This year we will strengthen our relationships and use the Bar as a vehicle to promote collaboration in achieving our collective vision. I want to thank you most sincerely for the opportunity to lead the Bar Association over the next year. It is an exciting time for Sacramento!

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

Happy New Year!

JANUARY/FEBRUARY 2011 SACRAMENTO LAWYER

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

Litigation

VIEW FROM THE CIVIL TRIAL BENCH: Writ Practice in the Superior Court: Where Medieval History Illuminates the Law By Judge Judy Holzer Hersher

This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments should be addressed to hershej@saccourt.ca.gov “To say truth, although it is not necessary for counsel to know what the history of a point is, but to know how it now stands resolved, yet it is a wonderful accomplishment, and without it, a lawyer cannot be accounted learned in the law.” Roger North (1653-1734) English lawyer, biographer, writer and Solicitor-General to the Duke of York

ttorneys and judges who venture into the law of ordinary and administrative writs find themselves in a legal arena vastly different from the typical civil trial. Some of the key terms and phrases seem arcane and inscrutable. For example, what is a “high” or “prerogative” writ, and what is the difference between an “alternative” and “peremptory writ”? There are trial anomalies as well. Although provision is made for juries in writ trials in our California statutes, they are rarely if ever used, as writ trials typically are conducted with few if any live witnesses. Often trial evidence is limited to a pre-established record, discovery is vastly constricted, and the proof at trial is governed by unique burdens of producing evidence and proof. Writs are written orders from the Court commanding a person or entity to perform or cease performing a particular act, or to restore someone to a right that has been taken or withheld from them. Much of the language used in writ proceedings and orders reflects the vestiges of medieval England, when monarchy was the recognized form of government, political and social unrest was the norm, and disobedience was dealt with harshly. Modern California writ law, codified

at Code of Civ. Proc. sections 10631110(b), has responded to the challenges and changes of the 21st century, but its roots are firmly in the Middle Ages.1 Understanding some of the history is helpful to making sense of this unique practice area. Legal scholars opine that the first evidence of the use of writs appeared around the time of the first or earliest Magna Carta, in the 13th century in England.2 Formal royal power over the lords and barons in England was exercised chiefly by the issuance of writs and the instruments often addressed feudal manor administration. The combination of taxes, unsuccessful wars and conflict with the Pope made England’s King John unpopular with his barons, who conspired against him. With no other apparent alternative to assume the monarchy if John was deposed, the barons negotiated a compromise, originally known as the Charter of Liberties and later the Magna Carta. Under the Magna Carta, the barons established their right to challenge the authority of the monarch where he or she acted in an arbitrary or capricious manner (italics added) and deprived the barons of their lands, money, or These early writ petitions rights.3 43

directed to the monarch were called “high” or “prerogatory” writs, which resulted in an order to perform some act or refrain from it immediately upon receipt and without further hearing. This kind of writ order is embodied today, although rarely used by California judges, through the issuance of a ‘peremptory’ writ, which commands that a party do something, also immediately and without an opportunity to show cause why it shouldn’t have to perform. (See Code of Civ. Proc. Section 10874) By the 17th century, the right to challenge the actions of those in power was extended to men of property and business or “free men.” (James Bagg’s (1615) 11 Coke’s Rep. 93b, 77 E.R. 1271 (K.B.)) Apparently one James Bagg had a somewhat salty tongue and had been ‘disenfranchised’ from certain offices for repeatedly uttering words of contempt against city officials. He petitioned the English court to have his offices returned to him because he didn’t know where else to turn. Recognizing a need to provide a speedy remedy for free men engaged in the everyday business of commerce and politics, the courts expanded English common law to provide a remedy through the writ process. The Bagg’s Court found: MARCH/APRIL 2011 SACRAMENTO LAWYER

Litigation …that to this Court of King’s Bench belongs authority, not only to correct errors in judicial proceedings, but other errors and misdemeanors extra-judicial, tending to the breach of the peace, or oppression of the subjects, or to the raising of faction, controversy, debate, or to any manner of misgovernment, so that no wrong or injury, either public or private can be done, but that it shall be (here) reformed or punished by due course of law. (James Bagg’s Case, Id, n. 7, 98a and 1277-1278.) Thus, by the early 17th century the doors of the English courthouse were thrown open to free men, as well as persons of title, to utilize the writ petition to challenge the acts of the sovereign, as well as the acts of lesser tribunals or officers who held power over them.5 The use of the petition practice was premised on the need for quick and effective action by someone of greater authority than the bad actor. And in so doing, it also provided an opportunity in the commercial or public arena for the parties to present evidence of their alleged rights and harms. This also was the beginning of the ‘alternative’ writ referenced in Code of Civ. Proc. Section 1087. (See fn. 4, supra.) With this history in mind, the statutory language enacted in California in 1872, which remains unchanged today and which appears in Code of Civ. Proc. 1085, begins to make sense. It provides for a writ of mandate to any inferior tribunal, corporation, board or person, to compel it to perform an act which the law specifically enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board or person. As a prerequisite to any applica-

SACRAMENTO LAWYER MARCH/APRIL 2011

tion, 17th century English petitioners had to show two things. First, that there was no plain, speedy, available remedy, and second, that the petitioner was in fact entitled to the use or enjoyment of a particular station or office or benefit.6 The same phraseology is used today. (See, e.g., Code of Civil Procedure sections 1068 (power to grant writs), 1085 (power to issue a writ when the party is entitled to the use and enjoyment of a right or office to which they are entitled and prevented from holding), and 1086 (mandatory duty to issue). The requirement to prove that one is in fact “beneficially interested” in a particular right or station remains today in California writ practice and is referred to as standing.7 The earliest evidence of the use of mandamus in the American colonies occurred during our colonial period, beginning in 1608. However, the nature, extent and power of a nonsovereign (i.e., the courts) to issue writs of mandamus in the colonies remained inconsistent for almost two centuries, and despite the English embrace of a court process for free men, there was no consensus among the colonial governors, the judiciary and local governing bodies that the judiciary had the power to issue writs.8 For example, in the case of the New Meeting House in Malden, Massachusetts in 1727, a local committee was authorized by the City Council to select the physical location for a new community building. It chose a particular site (the northern site), however, the town administrators ignored their selection, and start to build on another site (the southern site). The committee went to the City Council and got an order saying that the town administrators had to move the meeting house to the northern site, consistent with the power of the 44

local committee to decide its location. When the order to move was ignored, the local committee went to the Superior Court in Massachusetts seeking a “suitable remedy.” The Superior Court penned a draft writ of mandamus, but then declined to issue it, unsure of its legal ability to do so. The writ draft read: “Wherefore minding to Provide them due & Speedy Relief in their behalf as Justice requires, We Command you [to record and erect] ye Same with out delay, or Signify to us ye Reason why you don’t, and make due return of this Writ…” (198 Suffolk County Court Files, July 1729-August 1729, No. 23117 (Office of the Clerk of the Supreme Judicial Court, Boston)). Unhappy with the Court’s failure to issue the writ, the local committee petitioned the governor, asking him to force the Superior Court to issue the writ. He so ordered. However, the town administrators, believing that neither the court nor the governor had the power to issue writs, petitioned for a writ from the state legislature, specifically to set aside the orders of the governor and any court. The Massachusetts state legislature ultimately issued its own writ, declaring that since there was no statute granting any power to the superior courts to issue a writ of any kind, and since the parties should otherwise be entitled to a trial by jury, the court lacked jurisdiction to proceed.9 California enacted a series of statutes in 1872, governing writs of review, mandamus and probation. The earliest decisions confirmed that California was codifying its understanding of the common law of writs and provided for a local state court’s authority to hear and decide writs of mandate, at least with respect to cases dealing with the performance or failure to perform certain acts by lesser tribunals. (See, e.g., Kimball v. Union Water Co., (1872) 44 Cal. 173, 175.)

These early statutes and cases, however, continued to reflect the tensions of the New Meeting House case. Thus, the 1872 statutes leave open the possible use of juries10 and don’t directly tackle when, and under what circumstances, a court can direct a government agency to set aside its decisions or orders. It was not until after 1944, more than 200 years after the Meeting House case in Malden, Massachusetts, that a California court’s ability to issue writs directed to government agencies without benefit of a jury in certain circumstances was codified. After a study by the Judicial Council, the California state legislature adopted three major pieces of legislation. It created a Department of Administrative Procedure, enacted the Administrative Procedure Act (APA)(Govt C section 11340-11529) and Code of Civ. Proc. section 1094.5, the codification of procedures related to court review by administrative mandamus of government agency By 1944, the hearing decisions.11 ability of California trial courts to hear and issue writs, with or without benefit of order to show cause hearings and juries, was solidified. The rest, as they say, is history. 1. This article is based on the introduction to a writ course taught by the author at the 2008 California Judicial Civil Law Institute, San Diego, California. 2. For an in depth study of the historical rise of writs, see “An Historical Account of the Rise and Fall of Mandamus,” by Robert H. Howell, Assistant Professor of Law, Univ. of Victoria, Victoria, British Columbia, 15 Victoria U. Welling L. Rev 127 (1985); Holdsworth, Sir William, “A History of English Law in Sixteen Volumes”, Published by Methuen & Co., LTD, London (1964). 3. There are many interesting books/articles on this subject. See, e.g., Poole, A.L., From Domesday Book to Magna Carta, 1087-1216, Oxford University Press, 2nd ed (1992); Holt, J.C., The Northerners: A Study in the Reign of King John, Oxford University Press,

New edition (1992); Clanchy, M.T., A History of England: Early Medieval England, Folio Edition. (1997). 4. CCP section 1087 provides that a writ “may be either alternative or peremptory. The alternative writ must command the party to whom it is directed immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the court at a time and place then or thereafter specified by court order why he has not done so. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done as commanded must be omitted.” 5. For further historical information on the rise of mandamus in England and the British Colonies, see “An Historical Account of the Rise and Fall of Mandamus,” by Robert H. Howell, Assistant Professor of Law, University of Victoria, Victoria, British Columbia, 15 Victoria U. Wellington L. Rev. 127 (1985); Holdsworth, Sir William, A History of English Law in Sixteen Volumes, Published by Methuen & Co., LTD, London (1964). 6. “There is no doubt that where a party, who has a right, has no other specific legal remedy, the court will assist him by issuing this prerogative writ in order to his obtaining such right.”--Chief Justice of the King’s Bench, 1756-1788, Lord Mansfield (R. v. Doctor Askew (1768) 4 Burr. 2186, 98 E.R. 139, 141 (K.B.). 7. A series of California cases have addressed the meaning of beneficial interest. (See, e.g., Waste Management of Alameda County, Inc., v. County of Alameda (2000) 79 Cal.App.4th 1223.) Various statutes also now confer standing. 8. Goodman, Leonard S., “Mandamus in the Colonies—The Rise of the Superintending Power of American Courts, 1 Am. J. Legal History. 308 (1957). 9. The history of the Malden, Mass., case is taken from: Goodman, Leonard S., “Mandamus in the Colonies—The Rise of the Superintending Power of American Courts”, 1 Am. J. Legal Hist. 308, 328-332 (1957). 10. See CCP section 1090, providing for the use of jury trials on disputed facts. In today’s courtroom, jury trials are rarely used. 11. Section 1094.5 provides for writ review of the validity of any final administrative order or decision made as a result of an administrative proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer. 45

Reach A Collection of Variety of Articles Sacramento Area Professionals

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Litigation

Judicial Estoppel: The Marriage of Court and Litigant that Demands Integrity By Judge Judy Holzer Hersher

This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments should be addressed to hershej@saccourt.ca.gov

the heat of the moment litigants make representations to the Court that, in the dawn of a later day, may be forgotten or changed. Sometimes the changes are apparent in subsequent pleadings in the same action. Sometimes they are contained in a separate legal proceeding. These changes can have a significant impact on how the court treats the party before it. Called the “doctrine of preclusion of inconsistent positions,” but more often just “judicial estoppel,” this equitable defense focuses on the relationship the litigant has with the court, the judicial system, and the judge. It is grounded in the conviction that to maintain the integrity of the judicial system and its processes, there is a line that parties and their counsel cannot cross in the prosecution of their case. At least one court has described judicial estoppel as a tool available to judges to prevent a party from asserting a position in a legal proceeding that is contrary to one taken previously in the same or earlier proceeding, and when in so doing, the party is really just playing “fast and loose with the courts.” (Jackson v. City of Los Angeles, (1997) 60 Cal. App. 4th 171,182-183 [citations].) Its use by a trial judge is discretionary and limited to circumstances where a party engages in egregious behavior. (See e.g., Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719, 735; Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 132; Daar & Newman v. VRL International (2005) 129 Cal.App.4th 482, 491). Judicial estoppel has nothing to do with offering inconsistent or alternative causes of action in the same proceeding, or tactical changes in the presentation of the case based on discovered facts. So powerful is the doctrine that its application can end a case or enforce a settlement that is problematic for the parties to execute. In Jackson v. County of Los Angeles, supra (“Jackson”), plaintiff, in an earlier workers’ compensation proceeding, argued that he had sustained a work-related back injury, and therefore was entitled to compensation and an accommodation that would limit future employment to stress-free work. His argument and evidence carried the day and formed the basis of his workers’ compensation award. The trial court found that his asserted limitations in the prior action prevented him from arguing in a subsequent employment dis-

SACRAMENTO LAWYER MAY/JUNE 2011

crimination case that he could perform the essential functions of a safety police officer. The trial court thereupon granted summary judgment for the County. On appeal, the appellate court acknowledged that judicial estoppel is appropriate for application when all of the following are true: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true; (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud or mistake.” (Id, at pp. 181-183.) Two more recent cases illustrate the potential breadth of application.

In Blix Street Records, Inc., v. Hugh Cassidy et al., (2010) 191 Cal.App. 4th 39 (Blix), the parents (and child) of a deceased popular singer inherited the rights to their daughter’s work. They wound up in litigation against various parties over royalty payments and a motion picture deal. Trial began in March 2006, a jury panel was called up, but the court recessed for a few weeks to allow the parties to mediate the dispute. The jury panel remained on hold. During the recess, certain parties participated in the mediation. Two others did not, but their counsel indicated they both would enter into a settlement so long as they did not have to pay money and would receive full general releases. At the mediation the participating defendants and plaintiff signed a handwritten settlement agreement that said: “Although subject to more formal documentation, including the preparation and filing of a dismissal of the entire action with prejudice, this is a final binding agreement subject to judicial enforcement pursuant to CCP 664.6.”1 The terms of the agreement covered an extended period for a licensing agreement, royalties, a business plan, and certain agreements related to the motion picture and its ultimate release. The two parties who did not participate in the mediation did not sign the document, although the settlement agreement purported to release them. All counsel, i.e., those representing the signing and non46

constitute an enforceable contract per the appellate opinion, Plaintiff was judicially estopped from denying its enforceability because of its repeated assertions that the matter did settle, and because the court adopted this as true, and made that representation to a jury panel. The court enforced the settlement. Compare this to the Third District Court of Appeal’s recent decision in The Swahn Group, Inc., v. Malcolm S. Segal (2010) 183 Cal.App.4th 831 (Swahn),2 which also involved a settlement. In Swahn, Plaintiff sued their former attorneys (“S&K”) arising out of an action against a third party (“Tharaldson”) for breach of contract to develop 20 hotels. In the first or underlying action, Plaintiff Swahn alleged that on the advice of S&K, it settled its breach of contract action against Tharaldson after arbitration and mediation. Plaintiff represented to the court that the arbitration was appropriate and the settlement was appropriate. As in Blix, after the settlement Plaintiff changed attorneys. Just like the Plaintiff in Blix, Swahn sought to derail the settlement and brought an action to rescind the settlement agreement. Swahn said it wanted to go forward on its original breach of contract action and alleged, among other

signing litigants, on four separate occasions represented to the court that the case had settled: first by email, then in person in the judge’s chambers; then by standing silent when the judge, in their presence, advised the jury that the case had in fact settled and dismissed them; and finally when, after the jury was dismissed, on the record they all agreed that the case was settled subject only to certain steps necessary to finalizing the settlement. Plaintiff, however, brought in a new attorney, who advised that the agreement was neither binding nor enforceable, and therefore refused to complete the final settlement papers. The other parties moved to enforce the settlement and the trial court granted the motion and entered judgment on its terms. The judgment was reversed on appeal because the settlement lacked certain essential terms and because the trial court failed to make an adequate record of the settlement. However, a dissenting appellate opinion offered that the multiple assertions regarding settlement provided a vehicle on remand for the trial court to consider judicially estopping the Plaintiff from denying the settlement. That is exactly what the court did. In a bench trial, the court found that although the settlement agreement did not

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Litigation The Third District Court of Appeal overturned the decision and sent the case back for answer and trial. Missing from S&K’s argument in favor of the application of judicial estoppel, according to the appellate justices, was the necessary element of court adoption and court action on the earlier asserted factual positions of the parties. It noted that the trial judge did not adopt the factual assertions of Swahn as true when it returned the parties to mediation. Rather, the parties through the vehicle of a subsequent mediation resolved the matter themselves. Under the circumstances, it could not be said that the trial court adopted any particular factual position or was prompted to engage in any action that would rise to level of playing fast and loose with the courts or undermine the integrity of the judicial process. (The Swahn Group, Inc., v. Malcolm S. Segal, supra, at pp. 845-848.) The appellate court next noted that any inconsistent factual assertions by Swahn in the first proceeding could be used to impeach testimony or support a defense by S&K in the second litigation. (Id, at pp. 846-849.) With the increased use of searchable data banks of briefs, decisions, and discovery responses, it will become easier to compare inconsistent positions taken by a party in the same or subsequent proceedings, and to present that evidence to the court. As evidenced by a growing body of law in the area, it is likely that requests for its application will increase. Its application depends upon strict compliance with the elements outlined in Jackson.

things, that it had been fraudulently induced into agreeing to this first settlement by defendant Tharaldson and defendant’s attorneys, and/or that the agreement was also the result of a mutual mistake of fact. The trial court, presumably with the assent of the parties, sent Swahn and Tharaldson back to mediation, where a second settlement was reached and the first settlement was voluntarily voided. However, in the time period between the first and second settlements, Plaintiff’s original breach of contract action against Tharaldson was dismissed for failure to prosecute. Having concluded its settlement against Tharaldson with their new attorneys, Swahn filed an action against their first attorneys, S&K, for breach of contract, breach of a fiduciary duty, fraud and professional malpractice. Swahn alleged, among other things, that its attorneys had pursued an “unnecessary” and “meaningless” arbitration in the first instance, negligently or fraudulently induced them into entering the (first) settlement, and also failed to pursue certain additional parties to their detriment when their original action was dismissed for failure to prosecute. S&K filed a demurrer and argued that Plaintiff should be judicially estopped from asserting all claims against them for malpractice because, among other things, Swahn had earlier persuaded the court that the original arbitration had been successful, and later that it had been defrauded and/or misled by Tharaldson and his attorneys in the first settlement, and not them. S&K argued that to now allow Swahn to argue that S&K was at fault for Swahn being defrauded or misled, or that it inappropriately advised Plaintiff concerning the arbitration, was inconsistent with Plaintiff’s earlier factual and legal assertions to the court, upon which the court acted when it accepted the first settlement, and then later when it set it aside and accepted the second. The trial judge agreed and sustained the demurrer.

1. CCP section 664.6 reads: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full or the terms of the settlement. 2. Swahn contains a detailed review of federal and state cases dealing with judicial estoppel.

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Collection of Articles by Judge Judy Holzer Hersher

2008-2015

Litigation

VIEW FROM THE CIVIL TRIAL BENCH: “Don’t Spit on Me” and Other Words of Wisdom from 50 Years of Court Reporting

By Judge Judy Holzer Hersher

This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments should be addressed to hershej@saccourt.ca.gov

THE BASICS

ourt reporting is not for the faint of heart. It requires a unique skill, one which reporters describe as the ability to tune their brains and ears, in coordination with their hands, to a frequency that enhances and records the myriad of voices in a courtroom. To secure state certification, each has to report at the minimum rate of 200 words per minute. Sacramento County Superior Court reporters have clocked transcriptions in excess of 340 words or more per minute. The later rates come with a number of problems, including the potential for dropped words or incorrect phrasing, as well as exhaustion and the need for more breaks. As you might imagine, at the top of the list of a court reporter’s pet peeves are the attorneys and witnesses who are speed talkers, particularly those for whom the words “slow down” has no meaning. They are followed by the gum chewers, pen clickers, those who mumble, and the attorneys who hover dangerously close to their stenowriters.

Attorneys should better prepare their witnesses about the importance of an accurate record. They should impress upon them, and practice if necessary, the need to speak loud enough to be heard and slow enough to be understood. It looks better to the jury if the attorney controls the pace of testimony, admonishing his or her own witnesses to slow down or speak up, rather than the court reporter or the judge. Frequent interruptions by the latter impact the flow of the testimony and may reflect poorly on both the witness and the attorney. During trial, attorneys often turn to the court reporter and direct him or her to read the witness’s answer or his/her question back. Don’t be surprised if you are ignored, they say. The court reporter is trained not to read back unless and until the judge requests it. A trial is not a deposition and the court reporter only takes direction from the court, even when the reporter’s time is charged to the parties in a civil trial. Admonishing the attorney regarding this may leave the impression that the attorney is ignorant of trial procedures or is being disrespectful of the court. Although self-evident, it is often forgotten. Attorneys should place themselves physically in the courtroom in such a way that they are not speaking with their back to the court reporter and the jury, both of which impact the accuracy of the record and what people in the courtroom hear and, truth be known, jurors’ impressions about them. They also advise that the typical record does not require a court reporter to prepare a word index, a concordance, and/or to provide a searchable disk. All these things are doable, but they require advance notice to the court reporter and usually an additional charge. Each of the reporters indicated that if, for example in a civil case, there is a word index already prepared from depositions, sharing those indexes at the beginning of the trial will allow the reporter to immediately build a word dictionary and trial index, making the record all the more useful to the attorneys during the trial and after.

“I have literally been …spit on, had my glasses knocked off, stepped or fallen on, elbowed in the back of the head, almost hit with a baseball bat during a demonstration and harpooned by a pointer stick when pregnant, and got a paper cut on my nose by an attorney handing a witness a document…” Kathy Ennis, Dept. 10 I recently sat with three of the Sacramento County’s reporters as they collectively shared their stories on attorneys and the importance of making a good record. Collectively, they have over 50 years of experience reporting and preparing appellate transcripts on everything from auto accidents to death penalty cases. They have seen thousands of attorneys in action. Space does not permit sharing all of our conversation. One thing they all emphasize is keeping a safe distance from them during trial. Attorneys apparently forget where the court reporter is in the room and, on occasion, reporters have had their glasses knocked off, their $5,000 machines knocked over, evidence spewed on them, and been hit with flying parts of exhibits. At a minimum, the equipment surrounding each reporter represents a personal $10,000 investment that they are understandably protective of. Here are some additional highlights of the conversation.

SACRAMENTO LAWYER JULY/AUGUST 2011

JURY SELECTION AND THE IMPORTANCE OF NUMBERS

When attorneys pose a general question to a group of 50

defendant was standing here,” or “the impact occurred there.” This appears in the record parenthetically by the notation “witness indicating.” “Here” and “there” means nothing on a cold written record and gives opposing counsel, jurors and others free reign to engage in subjective recollection at read back and on appeal. It is the attorney’s job to provide an accurate and detailed oral description for the record. Don’t wait for the court reporter or the judge to ask for an oral description to remedy the deficiency, as it might never come. Just as importantly, with the increased use of Power Point and other types of sound or picture technology, attorneys have gotten lax in making an adequate record as to what is being shown to the jury. Making a good verbal record of the evidence is as important to the record in a case as bullet points shown on a screen are to a closing argument, they offer.

jurors during voir dire, they often point to a juror to further converse without identifying the person. This leaves the record with an unidentified responding juror. To the extent the answer might be important on appeal, there is an inadequate record to identify the person. The obvious recommendation is to identify any juror who responds to a global question by name or number, and to remember to do so every time. A lot of numbers get discussed at trial, and different attorneys and witnesses mean different things when they use different phrases to identify them. For example, the phrase “twelve fifty” has been used to mean $12.50, 1,250, and/or 12,050. Street slang, as well as common usage often plays a role in how people express numbers. The recommendation is to be clear when stating numbers. For example, rather than twelve fifty, say ‘twelve dollars and fifty cents.’ Clarity is particularly important during readback when jurors are considering damages or the value of drugs or stolen items. DEFICIENT ORAL DESCRIPTIONS

THE EMOTIONAL WITNESS OR THE WITNESS FOR WHOM ENGLISH IS NOT THEIR FIRST LANGUAGE

When an attorney or a witness refers to a chart or photograph, they often point to it while talking, i.e., “the

It is difficult to report a witness who is emotional. Often their answers to counsel’s questions are hard to understand

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JULY/AUGUST 2011 SACRAMENTO LAWYER

Litigation suggest that you get in the habit of asking the question using the person’s name. It may seem obvious to the attorney that “he” or “she” refers to the person most immediately discussed. However, days or months later, when the testimony is read back in the jury room or on appeal, it may not be so obvious to the listener or reader.

and can be misinterpreted. The same is true for a witness whose first language is not English. The court reporters suggest either that they ask their witness to repeat their answer, or ask them if they understood him or her to say “x”, so that the record is clear. QUOTING FROM DEPOSITIONS OR DOCUMENTS AND PROBLEM PRONOUNS

Fast-talking witnesses, late nights, daily transcripts and long trials, followed by more fast-talking witnesses and successive trials and inconsiderate trial attorneys, makes for a high-stress environment. Don’t add to it, if you can avoid it. Michelle Madrid, Dept. 45

While the rules in this area to help insure an adequate record seem obvious, they are often not followed. If, as an attorney, you are going to read portions from a deposition, you should identify where the question starts and stops, and where the answer starts and stops. This should be done by stating “question” before reading the question, followed by stating “answer” before reading the answer. Otherwise, it is hard for the court reporter to know where one begins and the other ends. Similarly, if an attorney is quoting from a document, it is important to make sure that he or she orally states where the quotation begins and ends. The use of “he”, “she” and “they” can create a confusing record at best. Sometimes it is not clear, given the questioning, which ‘he’ or ‘she’ you are referring to. The reporters

DAILY AND APPELLATE RECORD PREPARATION

When attorneys advise court reporters that they are going to require daily transcripts, at a minimum two court reporters are assigned to the trial. Typically, a lead reporter is established and that person communicates with all other reporters regarding the product, timelines and whether extensions will be filed with the appropriate Court of Appeal, should it come to that. This means a lot of late nights and early mornings during trial for each of the reporters, as they switch out during the day, and prepare the record for the following one. A day’s worth of court proceedings typically results in 200 pages of transcript. That means each reporter is responsible for approximately 100 pages turned around in less than 24 hours. In addition to working on their own transcripts, the reporters have to work together, conferencing each evening regarding terminology, proper spellings, identification of exhibits, indexing, pagination, the number of copies to be printed, the collation and binding of the transcript, and so on. This is particularly challenging, especially when it comes to putting together the record for a court of appeal. In longer trials, it is not uncommon to have upwards of ten reporters working together. When a trial is over, and the attorney signals there will be an appeal, court reporters have a short window within which to prepare the transcript, unless granted an extension by the Court of Appeals, while they otherwise continue their work during regular hours on the next trial or trials.1 This is true, regardless of the length of the trial, i.e., whether it is 5 or 150 days. Fast- talking witnesses, late nights, daily transcripts and long trials, followed by more fast-talking witnesses and successive trials and inconsiderate trial attorneys, makes for a high-stress environment. (See, e.g., Malick v. Contra Costa County Flood Control and Water Conservation District (1982) 131 Cal.App. 3d 50, for an example of the time pressures on court reporters.) Their final recommendation is don’t add to it, if you can avoid it.

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1. Typically, criminal appeals are due 20 days after verdict and judgment, while civil transcripts are due in 30 days. Extensions of time are granted by the Courts of Appeal in those same equal increments 52

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Litigation

VIEW FROM THE CIVIL TRIAL BENCH: The Pitfalls of Neglecting a Court Approved Settlement in a Minor’s Case

By Judge Judy Holzer Hersher

(With the appreciated assistance of UC Davis School of Law externs Natalie James and Landes Taylor)

This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments should be addressed to hershej@saccourt.ca.gov

substantial number of applications come before the court to approve the settlement of a minor child’s personal injury claim. The settlements typically range from a few hundred dollars to several millions of dollars. Sometimes the settlements come after a lawsuit is filed. Other times the settlements are reached prior to filing suit, usually in negotiation with the defendant’s insurance company. Two statutes govern in the first instance when, and under what circumstances, a parent as opposed to another adult must be appointed guardian ad litem to compromise the claim. Both statutes set out the procedure for having the court approve the settlement. (See Prob. Code, § 3500 and Code Civ. Proc., § 372.i) In a certain number of these cases, attorneys, insurance companies and the guardians are electing not to seek court approval of the settlement agreement. This tends to occur where the settlement amount is $5,000 or less, or where one of the parties is self-represented and does not insist on the procedure. The impetus for the decision appears to be the attendant costs of filing suit and/or the costs associated with a motion to appoint a guardian and seek court approval of the compromise.ii The costs, when factored in with the payment of attorney fees, can significantly reduce the amount left for the minor. There are consequences, however, for the parties when a minor’s settlement is not approved by the Court. The most significant consequence is that the minor is not bound by the agreement and can later disavow it. In these circumstances, the defendant can find him or herself involved in the same lawsuit that he or she thought was over, and one which seeks substantially more in damages than previously agreed to, and without benefit of recourse to enforcement of the earlier compromise. Attorneys that fail to advise their clients of this possibility may also later be subject to suit by their insured for malpractice. Thus, all parties involved in the compromise of a minor’s claim ought to carefully consider their actions before deciding against a court approved settlement.

California codes that affect the validity of a settlement made on behalf of a minor. Under Civil Code sections 1556 and 1557 and Family Code sections 6701 and 6710, and except in limited circumstances generally not involved in personal injury claims, a minor lacks the capacity to enter into a contract, and thus, a settlement agreement.iii Under Code of Civil Procedure section 372, a guardian ad litem or conservator of a minor is granted the power to compromise or settle a claim, or agree to an order or a judgment on behalf of a minor, but only with court approval. Similarly, under Probate Code section 3500, “the compromise or covenant [to settle] is valid only after it has been approved, upon the filing of a petition, by the superior court….” Read together, these statutes provide that a minor does not have the capacity to agree to a settlement, that the ability to compromise a claim on behalf of a minor is conferred by statute on the parent or guardian, and that any settlement is enforceable only after application to and approval by the Court from the guardian or parent, who thereafter follows the orders of the Court. (See fn. 1, supra.) Scruton v. Korean Air Lines Co. (1995) 39 Cal.App.4th 1596 is illustrative. In Scruton, the guardian ad litem of two minor children brought an action on their behalf for personal injury and wrongful death against an airline and a manufacturer of navigational equipment. The passenger plane the minors’ sole parent was flying in was shot down by the Soviets as it strayed off course and illegally entered the country’s airspace, allegedly because of a faulty navigational system. The issue before the court in Scruton was whether the defendants could enforce a settlement agreement and compromise that the guardian ad litem had entered into, but then later withdrew her support from before court approval. The guardian did not file a petition to compromise the minors’ claims under Probate Code section 3500 or Code of Civil Procedure section 372. Defendants in Scruton, believing they had a binding and enforceable settlement agreement, filed a motion under Code of Civil Procedure section 664.6iv to enforce the agreement over the guardian’s objection. The trial court agreed the settlement was binding since the guardian had signed it,

The Settlement Requires Approval by Both the Guardian and the Court

There are several statutes scattered throughout the

SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2011

Litigation

and found that it was reasonable and in the minors’ best interests. The Court of Appeal, Second District, reversed the trial court’s ruling. It held that no settlement is final or binding until the court approves it through the vehicle of a petition under Code of Civil Procedure section 372. In addition, the appellate court expressly curtailed the power of a trial court to consider whether the settlement was in the best interest of the minor until after the guardian both (1) endorsed the settlement and (2) presented it to the court for consideration and acceptance. (“Only when the court accepts a settlement endorsed by the guardian does it conduct its own inquiry to determine whether the settlement serves the minor’s best interests.” (Scruton v. Korean Air Lines Co., supra, (1995) 39 Cal.App.4th at p. 1607, original italics.) In short, a settlement on behalf of a minor that is made outside the bounds of the procedures envisioned under Code of Civil Procedure section 372, but with the approval of both the guardian and the court, is simply unenforceable. (Ibid., at pg. 1605, citing with approval Dacany v. Mendoza, (9th Cir. 1978) 573 F.2d 1075, 1080 [“…just as a minor lacks capacity to enter into a contract, the guardian ad litem lacks contractual capacity to settle litigation without endorsement of the court. As with any other contract where one party lacks capacity, or where a necessary contractual formality has been ignored, the contract is voidable until the defect is remedied”].) The same is true where a settlement is reached before suit is filed. (Prob. Code §3500.)

(3) “A guardian has no authority to enter into an agreement compromising the claims of his charge without the sanction of the court that appointed the guardian. (Leonard v. Rose (1967) 65 Cal.2d 589, 594; Everett v. Everett (1976) 57 Cal.App.3d 65, 69.)” (4) “A court’s order approving a compromise confers on the guardian ad litem the legal power to enforce that agreement. (Dacanay v. Mendoza, supra, 573 F.2d at p. 1079.)” (5) “This is because the court effectively exercises ‘supervision over the rights of the minor or the acts of the guardian ad litem.’ (Berry v. Chaplain, supra, at p. 658.)” (6) “Therefore without trial court approval of the proposed compromise of the ward’s claim, the settlement cannot be valid. (Anderson v. Latimer (1985) 166 Cal.App.3d 667, 676.)” (7) “Nor is the settlement binding until it is endorsed by the trial court. Subject to exceptions not applicable here, contracts are voidable by minors in California. (Fam. Code §§ 6710, 6701)” (8) “Therefore, a proposed compromise is always voidable at the election of the minor through his guardian ad litem unless and until ‘the court’s imprimatur has been placed on it.’ (Dacany v. Mendoza, supra, 573 F.2d at p. 1080.)” A Minor’s Right to Disaffirm is Granted by Statute

A minor also retains the personal right to disaffirm a settlement that has not been entered into lawfully. (See, e.g., Fam. Code § 6710 [“Except as otherwise provided by statute, a contract of a minor may be disaffirmed by the minor before majority or within a reasonable time afterwards or, in case of the minor’s death within that period, by the minor’s heirs or personal representative”].) There are exceptions, of course, and issues of equity arise regarding possible return of the consideration previously paid. The legal concept that a party deals with a minor at his or her peril is a long-standing principle of law designed to protect children from others, as well as themselves, and should be heeded in the area of settlements involving minors. (See, e.g., Pollock v. Industrial Accident Commission (1936) 5 Cal.2d 205 [payment of a monetary award directly to a minor was ineffectual to discharge the indebtedness owed the minor, and thus the minor, in a subsequent petition, is entitled to a determination that the award has not been paid; a subsequent award may be conditioned on return of prior funds].) Importantly, a minor cannot disaffirm an obligation, otherwise valid, entered into by the minor under the express authority or direction of a statute. (Fam. Code § 6711.) Thus, to insure the validity and finality of a settlement,

There is No Amount Below Which Approval is Not Required

There is no mention in Code of Civil Procedure section 372 or Probate Code section 3500 or any case that identifies a monetary threshold below which court approval is not required. It is possible that other sections of the Probate Code that address under what circumstances a compromise of less than $5,000 may be paid directly to the parent for the benefit of the child, instead of into a blocked account for example, may have created some confusion. These statutes do not, however, waive the necessity of a petition to compromise the claim. (See, e.g., Prob. Code §§ 3401, 3402, 3412(d), and 3611.) Scruton, at pages 1605-1606, contains the following excellent summary statement of the law in this area with citations that remain good law: (1) “The guardian ad litem serves merely as the representative of the minor and an officer of the court. (In re Christina B. (1993) 19 Cal.App.4th 1441, 1453.)” (2) “As an agent with limited powers, the guardian’s purpose is to protect the rights of the minor [Ibid], but it is the duty of the court to see that such rights are protected. (Berry v. Chaplin (1946) 74 Cal.App.2d 652, 657.)” 55

SEPTEMBER/OCTOBER 2011 SACRAMENTO LAWYER

Litigation case. A guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to appoint a guardian ad litem to represent the minor, incompetent person, or person for whom a conservator has been appointed, notwithstanding that the person may have a guardian or conservator of the estate and may have appeared by the guardian or conservator of the estate. The guardian or conservator of the estate or guardian ad litem so appearing for any minor, incompetent person, or person for whom a conservator has been appointed shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to that compromise…

regardless of the additional cost, it is prudent for the parties to obtain court approval. i Probate Code § 3500: Parent's right to compromise minor's claim (a) When a minor has a disputed claim for damages, money, or other property and does not have a guardian of the estate, the following persons have the right to compromise, or to execute a covenant not to sue on or a covenant not to enforce judgment on, the claim, unless the claim is against such person or persons: (1) Either parent if the parents of the minor are not living separate and apart. (2) The parent having the care, custody, or control of the minor if the parents of the minor are living separate and apart. (b) The compromise or covenant is valid only after it has been approved, upon the filing of a petition, by the superior court of either of the following counties: …. (d) A parent having the right to compromise the disputed claim of the minor under this section may execute a full release and satisfaction, or execute a covenant not to sue on or a covenant not to enforce judgment on the disputed claim, after the money or other property to be paid or delivered has been paid or delivered as provided in subdivision (c). If the court orders that all or any part of the money to be paid under the compromise or covenant be deposited in an insured account in a financial institution in this state, or in a single-premium deferred annuity, the release and satisfaction or covenant is not effective for any purpose until the money has been deposited as directed in the order of the court. Code of Civil Procedure § 372. Minors and incompetent persons as parties; Manner of appearing; Appointment of guardian ad litem; Handling of moneys recovered: (a) When a minor, an incompetent person, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each

ii The filing of a complaint and/or petition for approval of a minor’s claim in the Sacramento County Superior Court is currently over $400. Service of process costs, plus costs associated with obtaining necessary medical records to support the petition can raise the amount by several more hundreds of dollars. iii Civil Code § 1556. Who may contract: All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights. Civil Code § 1557. Capacity of minors and persons of unsound mind to contract: (a) The capacity of a minor to contract is governed by Division 11 (commencing with Section 6500) of the Family Code. (b) The capacity of a person of unsound mind to contract is governed by Part 1 (commencing with Section 38) of Division 1. Family Code § 6701. Limitation on authority of minor: A minor cannot do any of the following: (a) Give a delegation of power; (b) Make a contract relating to real property or any interest therein. (c) Make a contract relating to any personal property not in the immediate possession or control of the minor. iv Code of Civil Procedure § 664.6. Judgment pursuant to terms of settlement: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.

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SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2011

v The varied issues that come into play when a minor disaffirms a settlement are addressed in the case notes accompanying Family Code section 6710, among other places. 56

Collection of Articles by Judge Judy Holzer Hersher

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Litigation

VIEW FROM THE CIVIL TRIAL BENCH: “Out of the mouths of babes...” Child Witnesses in the Courtroom

By Judge Judy Holzer Hersher

This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments should be addressed to hershej@saccourt.ca.gov

Establishing Competency or the Lack Thereof

hildren are powerful witnesses in the courtroom. They can be unpredictable, engaging and, at times, uncontrollable. They can make or break a case with a spontaneous reaction or response. Take the case of an attorney who asked a 5 year old witness if he could come closer to better hear her, because she was soft spoken. With wide eyes, she raised her slender hand, pointed at the defendant and queried: “Are you with him?” “Yes,” answered the defense attorney politely. “Then no, you can’t.” The defendant was being sued for money damages arising from an alleged sexual assault on the child, and questioning about the event had not yet begun. Everyone in the courtroom immediately understood the importance of her unanticipated response. Whether for plaintiff or defendant, child witnesses are aptly analogized to David in the biblical story of David and the giant Goliath. Although there is disparity between the size and power of the witness and the opposing side and its counsel, no one should under estimate the power of the testimony, or under prepare for the examination of a child in a courtroom. The concept that children often speak the truth in the most innocent or offhand manner is reflected in both theology and common proverbs. 1 Standard civil jury instructions reflect the fact that a child is a witnesses just like anyone else, and their testimony should not be discounted or distrusted just because they are a child. 2 All children, no matter what their age, are considered qualified to testify in court, barring proof to the contrary. (Cal. Evid. Code § 700) Child witnesses as young as 3 years and 3 months, who, at the time of trial, are 5 years old, have been considered competent to testify. (Bradburn v. Peacock (1955) 135 Cal.App. 2d 161 (Trial court should have permitted a child witness to testify as to the identity of the truck and/or truck driver that injured his sister.) This means, of course, that civil trial attorneys need to be prepared for the possibility that even a very young child will testify. This is true even where a child in deposition may not have demonstrated a clear ability to adequately convey what he or she saw or heard. This is because the measure of ‘competency’ is made at the time of trial and not the time of deposition or pre-trial interview. (Ibid, pg. 164-165.)3

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Child witnesses are not competent to testify where they cannot (1) express themselves so as to be understood or (2) understand the duty to tell the truth. (Evid. Code § 701) Attorneys may ask to establish competency outside the presence of the jury through the use of an evidentiary hearing (Evid. Code § 402 hearing to determine a preliminary fact), but the trial judge retains discretion to deny the request and to hear any challenges to competency until after direct examination. (Evid. Code §701(2)(b)) There are different methods for establishing the competency of a child to testify. Direct questions such as, “Tell the jury what it means to tell the truth,” or “Please tell us what a lie is,” are often bypassed in favor of demonstrative questions. For example, a child is asked to describe the color of the shirt or dress that he or she is wearing, say blue. The attorney then asks the child, “If I told you your shirt/dress was red, would that be the truth or a lie? After the child responds, and assuming appropriately, a follow up question such as, “Okay, what happens when someone tells a lie?” is often asked. Again, assuming an appropriate response such as “you get punished,” or “you don’t get to play videogames or watch television,” or “you don’t ever get believed,” the child will have established that he or she knows the difference between the truth and a lie, and that lying has consequences. For a child under 10, he or she need only then “promise to tell the truth,” so they won’t be punished. (Evid. Code §710) For those over 10, the Court has the ability to fashion an oath that both impresses upon the child witness the duty to tell the truth, and assures that they understand that there are consequences to not telling the truth, including perjury. (Code of Civ. Proc. §2094) During trial, a trial judge has the power to “forbid” the asking of a question in a form that is not reasonably likely to be understood by a child. (See Evid. Code §765(b)) Of course, the child remains subject to cross-examination, and the possibility that even though he or she knows the difference between the truth and a lie, the difference between fantasy and fact may be more problematic. There are few civil cases discussing children’s competency to testify. Practitioners in criminal, dependency and delinquency matters generally have more experience with 58

Litigation the child is otherwise available to testify. It may also result in a judge not permitting a particular question to be asked of a child in open court. Examples of the later tend to occur in child custody cases where one or both parents want the child to testify as to what they heard the other parent say about timeshare, moving away, or physical abuse and there is a concern that such testimony might affect the child’s relationship with one or both of the parents. (See, e.g., Okum v. Okum (1987) 195 Cal.App. 3d 176, 183.) Nonetheless, the same statutory power to protect the child is given to judges in any civil case – not just family law -- and may be exercised under appropriate circumstances.

establishing or discrediting a child’s credibility. Thus, case law in these areas reflects the breadth of these proceedings and appellate challenges. (See, e.g., In re Kalee B., (1993) 18 Cal. App.4th 719, 723; challenge to a trial court’s determination that a parent was an unfit father after allegations of sexual abuse by a 2 1/2-year-old minor who testified.) The non-civil case law is nonetheless instructive for civil trial attorneys. Importantly, even when an attorney is able to show that a child is not competent to testify in open court, this does not mean that any statements made by the child witness to others outside of court, and under different circumstances, will automatically be deemed unreliable by the court and be excluded. For example, in In re Dirk S. (1993) 14 Cal.App.4th 1037, the juvenile court found a five-year-old incompetent to testify at trial, but was not persuaded that the ruling precluded admission of her hearsay statements included in various reports to others. The court noted that the witness was able to distinguish between the truth and a lie, but that the courtroom situation apparently so unnerved the child that she was unable to speak. The court explained, “The st andards for qualifying to testify as a witness and the standards used to determine whether or not in a non-court-like setting the little girl is capable of accurately and honestly remembering what happened are two different things . . . [The witness] . . . was very intimidated by the number of people. She was scared.” The court continued: “The only finding I made today was that she was not able to qualif y as a witness and, therefore, testify at all today. I think that a child at that age can be overwhelmed, intimidated, frightened, scared, and become very inarticulate, can giggle, and otherwise not qualify. But in a non-courtroom setting, in a social setting where she is not surrounded by four or five adults and a court reporter and the intimidating circumstances that her questioning today presented t o her, she could communicate, I think, quite readily and with ease.' “(Id. at pp. 1040-1041, fn. 2.) In so ruling, the Court indicated that dependency proceedings are civil in nature and thus certain criminal procedural safeguards, such as the right of cross-examination, may be outweighed by other factors in a civil case. Consequently, case law allows, under certain circumstances, statements made by minors for non-hearsay purposes or under the exceptions to the hearsay rule to be permitted in the courtroom. (See, also, In re Kalee B., supra, (1993) 18 Cal. App. 4th at 727 (hearsay statements permitted to help explain and consider the credibility of witnesses and to explain the demeanor of the child witness while making the statement to others.) Trial judges are required by statute to exercise reasonable control over the questioning of witnesses under the age of 14 so as to prevent harassment, embarrassment, or repetitive questions. This opens the door, for example, for the use of a child’s videotaped deposition testimony even when

The Importance of Voir Dire

A critical jury issue with any child witnesses is their ability to accurately relate what they have experienced -- and thus their credibility. The more important their testimony to establishing or discrediting the case, the greater the importance of jurors’ own experiences in living with, working with, or dealing with children. Often a great deal of time is spent going over questions with potential jurors that focus on how jurors perceive children’s ability to accurately relate what they have experienced. Common questions include: “Do you tend to question the credibility of children” or “Do you think children in general are less credible than adults?” These are followed by whether a juror could find a specific fact to be true based on a child’s testimony alone. More often than not, however, attorneys fail to ask whether jurors believe children’s spontaneous reactions to events in or outside the courtroom are a sign of credibility or something else. They also neglect to explore jurors’ potential reactions to children who explain their perceptions or beliefs in terms of fantasy figures or dolls or cartoons. For example, if a child witness demonstrates that he or she knows the difference between the truth and a lie, but still says they believe in Santa Claus or the Tooth Fairy, how will jurors perceive their ability to accurately relate events they have witnessed? Children in the courtroom present unique challenges. Prepare well. 1. See, e.g., King James Version of the Bible, Psalm 8:2 and Matthew 21:16; the McGraw-Hill Dictionary of American Idioms and Phrasal Verbs, 2002; and the Cambridge Idioms Dictionary, 2nd ed. 2. CACI 224: Testimony of Child: You have heard testimony from a witness who is __ years old. As with any other witness, you must decide whether the child gave truthful and accurate testimony. In evaluating a child’s testimony, you should consider all the factors surrounding their testimony, including the child’s age and ability to perceive, understand, remember, and communicate. You should not discount or distrust testimony just because a witness is a child. 3. This case discusses former CCP §1880(2), which talks in terms of the ability to “receive just impressions of facts” and being able to “relating them truly.” CCP §1880(2) was repealed in 1965, effective 1967 and has been superseded by Evid. Code §701. The case remains good law, however. 59

NOVEMBER/DECEMBER 2011 SACRAMENTO LAWYER

Litigation

A VIEW FROM THE CIVIL TRIAL BENCH: The Courtroom as Arena -- Positioning is Everything Judge Judy Holzer Hersher

This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. The author would also like to thank the librarians at the Sacramento County Public Law Library, particularly Mary Pinard Johnson, for their able assistance. Comments should be addressed to HersherJ@saccourt.ca.gov Where you stand makes a difference

English law, it all began with four benches – made of stone slabs filled with earth and sand and covered with mats – set in a square to form “the well.” The benches defined the area of the court and the action that would take place within it.1 It also set the boundaries for physical movement during a trial. In 1994, former Federal Magistrate Judge Jeffrey Wolfe conducted a study involving twentyseven mock jury trials. Jurors were asked to rate opposing attorneys on persuasion, control and power based on the advocate’s physical location in a traditional courtroom. The study divided the well area into four quadrants and attorneys were assigned to two different locations during the trial. The results, which are discussed in the Pepperdine Law Review2 and in the American Journal of Trial Advocacy,3 confirm what trial judges’ experience on a daily basis: an advocate’s effectiveness as perceived by the jury is dependent at least in part upon his physical location in the courtroom. His or her location can enhance a juror’s sense of connection to the party and the case or distract from it. How far you stand from the jury box during trial does matter

Courtroom studies have concluded that attorneys who stand less than

SACRAMENTO LAWYER MARCH/APRIL 2012

30 inches from the jury railing or box are too close to the jury box. That would be a point just outside easy touching distance from the bottom row of jurors. This is because the area 18 to 30 inches surrounding an individual is the space within which a close friend is entitled to venture, something which an advocate is not. In our culture, four to seven feet is considered a close but comfortable distance for people to keep from one another, while beyond that is considered a normal work or appropriate ‘impersonal’ distance.4 When an attorney decides to move closer to the jury box is also important

Different schools of advocacy promote moving in close to the jury box early on in the trial, while others suggest a more gradual approach. Whatever the distance, the goal appears to gain the juror’s attention and trust through movement. All agree, however, that before moving in closer, an attorney needs to build both a rapport and a sense of trust with the jury. This technique recognizes that if an attorney gets close physically to the jury too quickly during the trial, jurors literally will move back in their chairs, away from the attorney—and perhaps from the appeal of their client and case-- and become distressed by the intrusion.5 This often does not bode well for the case. “As soon as the jury is empanelled, they are twelve people apart, 60

separated from the rest of the courtroom by the jury box and rail. How to climb into that box and become the thirteenth juror now becomes the trial lawyer’s mission” Norman Sheresky6 The typical Sacramento courtroom is designed to resemble an arena once used for gladiator fights. The judge, jurors and witnesses are generally fixed in place. The public is kept outside, beyond the fence or bar. The judge’s bench, the witness stand and the jurors in the jury box are elevated above and therefore removed from the fray. The floor of the arena or “well” contains the combatants -- the attorneys and the parties -- who are seated at tables of equal length when the process begins. More so in state than in federal court, attorneys are free to move about the courtroom in the well area and fight on behalf of their clients.7 Thus, how attorneys move in the courtroom helps distinguish them and their clients from the level playing field. By their movement in the space allotted, attorneys define the relationship between themselves and everyone else in the courtroom. Thus, positioning during trial matters. Just like in the magistrate judge’s study, I have observed that where and how an attorney stands in the well affects the amount of attention jurors pay during his or her questioning and opening or closing argument. Some things are obvious. It can annoy and frustrate the jury when an attorney blocks their vision, invades their personal space, or speaks from an inaudible distance—so much so that in a

Litigation handful of trials I have wondered whether the outcome of the case might have been changed if the attorney had handled the physical space of the well and the courtroom differently. “No matter what happens in the world of human beings, it happens in a spatial setting, and the design of that setting has a deep and persisting influence on the people in that setting.” Edward T. Hall8 The most effective trial attorneys recognize that where they stand in the courtroom during trial enhances their strategic and dramatic power. During direct examination, they tend to stand to the rear and side of the jury box towards the back of the courtroom. This allows their key witnesses to make eye contact with the jurors while they respond to their questions. This also makes their witnesses the focus of the jurors’ attentions. During crossexamination, the attorneys stand in such a way as to require the witness to face away from the jury, thereby creating a sense of distance between the witness and the decision makers. Those less aware of the impact of their physical positioning can become a visual distraction by their movement or position. Sometimes they remain seated during the examination of their own witness, which means the witness looks away from the jury. Remaining seated may also be seen as a sign of disrespect, something jurors may not appreciate. Still others turn their back to the jury box and block a direct view of the witness or evidence or move about so much that their actions are distracting. Other times, they miss important opportunities to force witnesses to make critical eye contact with the jury or to allow the jury to notice that the witness is unable to make eye contact with them. Given the size of the well in many courtrooms, it may be necessary to get close to the jury to avoid audiovisual equipment, exhibits, the court reporter or the counsel table. The

opposite may also be true. These are obstacles that need to be factored into control of the courtroom and a strategy developed. Generally, if the attorney is not successful in navigating the obstacles in his or her physical environment, or if by movement he or she becomes too great a distraction, a trial judge may ‘assign’ the attorney a place behind a podium at some pre-determined distance. Staging in the arena is important

Courtroom positioning is one element of a successful trial. It cannot overcome bad facts or problem witnesses, but it can and does contribute to the outcome of cases. To the extent it matters, the critical factors for an attorney to consider in deciding where to stand during the trial include: (1) the ability of witnesses to make eye contact with the jury; (2) the physical distance between the attorney and the jury at key points during the case; (3) the ability to easily and clearly hear the attorney’s questions and the witness’ answers (i.e., the directional qualities of hearing); (4) the ability of the advocate to orchestrate and control the flow of communication between the witness,

the jury and him or herself effectively; (5) the symbolism and timing of movement for effect; and (6) the impact of movement on subjective feelings such as ease, determination, modesty, anger, etc.9 1.Graham, Ordering Law: The Architectural and Social History of the English Law Court to 1914 (Ashgate Publishing Co., 2003), p. 43. 2.See Jeffrey S. Wolfe, The Effect of Location in the Courtroom on Jury Perception of Lawyer Performance, 21 Pepp .L. Rev. 731 (1994) 3.Wolfe, Toward a Unified Theory of Courtroom Design Criteria: The Effect of Courtroom Design on Adversarial Interaction (1995) Vol. 18, Am. J. of Trial Advocacy, pg. 593-656. 4. Hall, The Hidden Dimension xi (1982) at pgs. 116-25. 5. Wolfe, supra at note 3, pgs. 609-611. 6. Sheresky, On Trial, Masters of the Courtroom 13 (1977) 7. The ability to move within the well is governed by the rules of a particular court and judge and may vary widely both within a court and jurisdiction. 8. Hall, The Hidden Dimension xi (1982) 9. Wolfe, supra at note 3, pg .610; Van der Ryn, An Analysis of Courtroom Design Criteria (1967) 52 Judicature 150

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Collection of Articles by Judge Judy Holzer Hersher

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MARCH/APRIL 2012 SACRAMENTO LAWYER

Litigation

A VIEW FROM THE CIVIL TRIAL BENCH: Insufficiency of the Evidence and the 13th Juror: Motions in Support or Opposition to a New Trial

Judge Judy Holzer Hersher

This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments should be addressed to HersherJ@saccourt.ca.gov

Every jury trial has two separate and independent juries.

he first jury consists of the 12 individuals selected by counsel and sworn by the court to hear the evidence and reach a verdict. The second is a jury of one, specifically the trial judge, who sits as what appellate justices have referred to as the “13th juror.” (Norden v. Hartman (1952) 111 Cal. App. 2d. 751, 758) Both the 12-person jury and the judge as the independent jury have to agree the verdict is consistent with the law and the facts. If not, the trial judge has the last word and can grant a new trial. Why? Because “[w]hile it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed…” (KellyZurian v. Wohl Shoe Company (1994) 22 Cal. App. 4th 397, 413, citing People v. Robarge (1953) 41 Cal.2d 628, 633; Barrese v. Murray (2011) 198 Cal.App.4th 494, 503; Tice v. Kaiser Co. (1951) 102 Cal. App. 2nd 44, 46; and In re Estate of Bainbridge (1915) 169 Cal. 166,1681.) Trial judges are mindful of both the power they possess and the importance in our system of the right to a decision by a jury of one’s peers selected by counsel of one’s choice. Thus, of all the decisions a trial judge is called upon to make at the conclusion of trial, the decision

SACRAMENTO LAWYER MAY/JUNE 2012

to overrule a jury verdict and grant a new trial is the most difficult. Although there are a variety of circumstances under which a court is asked and can grant a new trial,2 one of the reasons most often addressed by counsel and struggled with by judges is the claim of “insufficiency of the evidence to justify the verdict.” (Code of Civil Procedure §657(6)) Most Motions are Routinely Made and Denied

Motions for new trials based on insufficiency of the evidence are routinely made at the conclusion of civil jury trials and usually denied. (Baker v. American Horticulture Supply, Inc., (2010), supra, 186 Cal. App. 4th at 1068) However, Barrese v. Murray, supra, (2011) 198 Cal.App.4th 494, emphasizes that new trials are and should be ordered by the trial judge in certain circumstances. Barrese involved a wealthy businessman and one of several dozen women with whom he shared his life over a 25 year period. One of these women, the plaintiff, was awarded $5.7 million by a jury for the alleged breach of various contractual promises made during the period of their relationship. The trial judge, despite finding the plaintiff not credible, believed she lacked power to overrule the jury verdict and order a new trial, so she denied the motion for new trial based on insufficiency of the evidence. She stated in her denial order, however, that she thought that absent the issue of plaintiff’s credibility, the 62

weight of the evidence would support the verdict. Specifically, she said, “I [(the trial court)] can say that my view was that [plaintiff] was impeached very thoroughly by the cards and other evidence, and it seems that there is a little bit of element of the jurors that apparently did not like [defendant’s] status as a wealthy man. It didn’t help that he didn’t show up on the first day. I don’t believe I can overrule the 9 jurors that did believe it. It is a credibility contest.” (Id at p.496-497) The appellate court reversed and remanded the denial of the motion for reconsideration, reaffirming not only the right of the trial judge to act as the 13th juror and overrule a jury verdict, but the duty to do so, particularly where credibility issues play an important role. What kind of analysis should the court engage in when presented with a motion for new trial based on insufficiency of evidence? Before a trial judge can conclude that there is insufficient evidence to support a jury verdict, the judge generally goes through a fourpart analysis. First, the trial judge makes an independent determination of the credibility of the witnesses on both sides. Second, the judge reviews all “credible” evidence admitted at trial. Third, the judge examines all reasonable inferences from the admitted credible evidence. And fourth, the judge reweighs all the evidence in light of its credibility determinations and reasonable inferences. (See, Barrese, supra. See also Valdez v. J.D. Diffenbaugh Co. (1975) 51 Cal. App. 3rd 494, 512; Fountain Valley

Litigation Chateau Blanc Homeowner Association v. Department of Veterans Affairs (1998) 67 Cal. App. 4th 743, 751; and People v. Lagunas (1994) 8 Cal.4th 1030, 1038.) In granting a new trial, courts must ultimately conclude that there is a “lack of probative force of the evidence as a whole” to support the jury’s verdict. (KellyZurian v. Wohl Shoe Company, supra, (1994) 22 Cal. App. 4th at 413) What is and is not a reasonable inference from the evidence was recently addressed in Joaquin v. City of Los Angeles, (2012) 202 Cal. App. 4th 1207, 1219. As stated therein, while “each case must be judged for sufficient evidence on its own peculiar circumstances… the inference must be a reasonable conclusion from the evidence and cannot be based upon suspicion, imagination, speculation, surmise, conjecture or guesswork. [Citation.] Thus, an inference cannot stand if it is unreasonable when viewed in light of the whole record. [Citation.] And although an appellate court will normally defer to the trier of fact's drawing of inferences, it has been said: “To these well settled rules there is a common sense limited exception which is aimed at preventing the trier of the facts from running away with the case. This limited exception is that the trier of the facts may not indulge in the inference when that inference is rebutted by clear, positive and uncontradicted evidence of such a nature that it is not subject to doubt in the minds of reasonable men. The trier of the facts may not believe impossibilities.” [Citations]’ (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203–1204.)” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389–390.)”’ The Key Issues to Address

A motion to grant a new trial based on insufficient evidence, at a minimum, should: (1) Discuss, with specific refer-

ence to the evidence at trial3, the credibility of the key witnesses, i.e., was it apparent that the witnesses’ testimony was believable, unbelievable or impeached and if so, how; (2) Address the relevant evidence, both seemingly in favor of and against granting a new trial, with reference to any earlier discussed credibility issues; (3) Examine the reasonable inferences in support of and opposing any factual findings; (4) Explain how all of the above merit the trial judge exercising his or her discretion in granting or denying the motion based on the weight (“probative force”) of the evidence; and (5) Finally, do not avoid discussing the evidence in opposition to any argument you are making. The trial judge will have to address it as part of the weighing process, so you should as well. Importantly, do not appeal to a trial judge’s personal leanings. A trial judge cannot overturn a verdict and grant a new trial, modify the verdict or otherwise affect the outcome because the trial judge: (1) Personally disagrees with the verdict; (2) Determines that it would have decided the matter differently if it was hearing the matter as a court trial; or (3) Is unable or fails to state reasons for granting the new trial with reference to evidence in the record. (See, generally, Mercer v. Perez (1968) 68 Cal. 2d 104, 108-112; Kelly-Zurian v. Wohl Shoe Company (1994) 22 Cal. App. 4th 397, 465; Locksley v. Ungurenu (1986) 178 Cal. App. 3rd 457, 463; Dominguez v. Pantalone (1989) 212 Cal. App.3d 201, 215-216; People v. Robarge (1953) 41 Cal. 2d 628, 633; and Code of Civ. Proc. §657.) Appellate courts have described the power of the trial judge in ruling on a motion for a new trial as “plenary,” (Barrese v. Murray, supra, (2011) 198 Cal. App.4th at 503) while the exercise of that power has survived 63

constitutional challenge (Clemmer v. Hartford Insurance (1978) 22 Cal. 3rd 865, 889). Once the decision is made to grant a new trial, opposing counsel, in order to overturn the court, would have to convince a higher court that no reasonable finder of fact could have found for the moving party on the trial court’s theory. (Baker v. American Horticulture Supply, Inc. (2010) 186 Cal.App. 4th 1059, 1067-1068) The appellate courts have described the law and policy in this area as follows: (1) Once made, a trial court’s decision is given great deference unless “a manifest and unmistakable abuse of discretion clearly appears” (Romero v. Riggs (1994) 24 Cal.App. 4th 117, 121); (2) Great deference is given to the decision exercised in favor of awarding a new trial, as this result does not finally dispose of the matter, and gives both sides the opportunity to retry their case. So long as a there is a reasonable or fairly debatable justification under the law shown for the order granting a new trial, the order will be upheld. (Jimenez v. Sears, Roebuck & Co. (1971) 4 Cal. 3rd 379, 387); and (3) “The presumption of correctness normally accorded on appeal to the jury’s verdict is replaced by a presumption in favor of the new trial order” (Baker v. American Horticulture Supply, Inc., (2011) supra, 186 Cal. App. 4th at 1068). Careful preparation of the motion in support of and in opposition to a new trial will focus the court on the issues it will have to address, while at the same time testing the merits of the moving or opposing party’s position. 1. Although one of the oldest cases cited in this article, it is still often quoted in newer decisions. 2. These include juror misconduct, abuse of discretion resulting in an unfair trial, irregularities in court proceedings, accident or surprise, newly discovered evidence, excessive or inadequate damages, or error in law excepted to at trial. 3. It is helpful to append the relevant portions of the trial transcript, if available. MAY/JUNE 2012 SACRAMENTO LAWYER

Litigation

A View from the Civil Trial Bench: “Blowing Hot and Cold” in Pleadings: A Risky Business at Trial

By Judge Judy Holzer Herscher

demurrers, answers and cross-complaints have the potential to serve as judicial admissions. (Code of Civ. Proc. Sections 420, 422.10; St. Paul Mercury Ins. Co. v. Frontier Pacific Ins. Co. (2003) 111 Cal.App.4th 1234, 1248). Statements offered in or agreed to for purposes of undisputed facts in a motion for summary adjudication or judgment can never serve as the basis of a judicial pleading admission. (Myers v. Trendwest, supra, (2009) 178 Cal.App.4th at 747-749) A proposed amendment or petition, not otherwise filed, even if attached to motion papers, also cannot serve as a basis for a claim of judicial admission by pleading. (Betts v. City National Bank (2007) 156 Cal. App.4th 222, 235-236) An argument in favor of a trial court finding of a judicial admission is more involved than simply pointing to a statement filed in a document with the court and claiming it amounts to a judicial admission. The history of discovery, prior requests to amend a pleading, alternative theories of liability and defense referenced in the pleadings, as well as statements made in papers other than the “pleadings,” can all impact a court’s decision. Normally a court will not find a judicial admission if the pleading permissibly alleges inconsistent counts or defenses based on alternative fact patterns. So, for example, a party might seek damages based on an alleged breach of a written contract or alternatively, if no written or executed contract exists, breach of an oral contract or possibly quantum meruit. Also, for policy reasons favoring liberality in permitting amendments, if the court permits an amendment to a pleading, the earlier pleading cannot be used to establish a judicial admission, although the parties may be free to offer the earlier statements as evidentiary admissions of what did or did not happen or for impeachment of the witness. (See, e.g., H. L. E. Meyer Jr. v. State Board of Equalization (1954) 42 Cal. 2d 376, 384) If a pleading is verified, however, the rules change. So, for example, a party cannot allege in a verified pleading that the party’s relationship is governed by an orally modified written lease, but then deny in the same pleading the

mong the motions filed by civil trial counsel before the start of trial is one asking that certain statements in a party’s pleadings be deemed judicial admissions. A ruling that a statement is a judicial admission is significant. It prevents the pleading party from offering contrary evidence or argument at trial on the factual representation, since the evidence would be both irrelevant and immaterial. This is because a judicial admission represents “conclusive concessions of the truth of those matters.” (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746; Walker v. Dorn (1966) 240 Cal.App.2d 118, 120) Thus, if granted, the motion is a powerful tool to surgically excise problem testimony and stave off changes in legal theory, remedies or amendments that might otherwise be liberally allowed at trial.1 Examples of potential judicial admissions include requests that the pleadings establish that a particular person was or was not driving a vehicle; did or did not do a particular act; gave or withheld permission; or signed or did not sign a key document. The requests for rulings commonly address statements in both verified and unverified pleadings. Findings of judicial admission are grounded in part on fairness and judicial economy. Allowing the admission of facts contrary to statements in a pleading that the opposing party has relied on during the run up to trial may well blindside or prejudice the other party, who has not conducted discovery or prepared for trial on that or a contrary factual assertion. (Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271) Judicial Admissions are Powerful Tools to Excise Problem Testimony and Amendments to Conform to Proof at Trial

What then qualifies for consideration as a judicial admission? Judicial admissions are limited to statements in pleadings. Some papers filed in an action are “pleadings” and others are not. Only admissions in complaints,

SACRAMENTO LAWYER JULY/AUGUST 2012

existence of the written lease. (See, e.g., Walker v. Dorn (1966) 240 Cal.App.2d 118,120, citing Witkin, California Evidence, section 224, page 251; “It should be remembered that no judicial admission results from the permissible use of inconsistent counts or defenses unless they involve contradictions of fact in a verified pleading.”). In Walker v. Dorn, the court found the pleader had admitted that there was a written contract when he so stated in a verified complaint and therefore should not be permitted to prove otherwise at trial. As another court put it, “[A] pleader cannot blow hot and cold as to the facts positively stated.” (Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146)

intentionally never signed the contract. Since there was no contract, Valerio’s only claim is upon the second cause of action for work, labor, services and materials rendered on a quantum meruit basis.” (Valerio v. Andrew Youngquist Construction, supra, (2002) 103 Cal.App. 4th at p. 1268) Despite this knowledge, Valerio did not dismiss the breach of an express written contract claim, nor amend his answer to the cross-complaint or his response to Birtcher’s request for admissions. Thus at the time of trial the pleadings remained as they were on the date of filing. Meanwhile Birtcher, in its trial management conference statement and trial brief, stated that based on the pleadings, admissions and discovery responses, the existence of the written contract was not in dispute and that it would object to any contrary evidence being offered at trial and sought a judicial admission to that effect. Describing the law on judicial admissions as “well settled by venerable authority,” the appellate justices pointed to the pleadings, discovery, and failure to amend as a concession to the truth of the written contract -- even in light of the trial management conference statement to the contrary. They held that as a result, “[A]ny finding adverse to the admitted facts drops from the record, and any legal conclusion which is not upheld by the admitted facts is erroneous.’[Citations.]” (Welch v. Alcott (1921) 185 Cal. 731, 754) (Valerio v. Andrew Youngquist Construction, supra, (2002) 103 Cal.App. 4th at p. 1271) Importantly, acknowledging and balancing the policy in favor of liberally allowing amendments to pleadings during the course of litigation, the appellate justices acknowledged that facts can and do change during the course of discovery, and if timely made, a party can mitigate the impact of any early judicial admission. The court then denied Birtcher’s request to have the trial court instructed on remand to find that the parties entered into a written trade contract at the retrial. Instead, the justices stated, “…the cause is at large for retrial. The [trial] court has the same authority to allow amendments as in a case not yet tried, and leave to amend is granted with about the same liberality.” [Citations]. (Id, at p. 1274) Valerio was decided based on the totality of the circumstances -- that is, on his unverified complaint, admissions, answer to the cross-complaint, and on his failure to seek an amendment even when he learned that his prior admissions were incorrect. The lack of one or more of these circumstances might well end in another result for a litigant.

Amending Pleadings and Discovery Responses is Critical

The importance of careful drafting in the preparation of pleadings, the history of discovery, and the need for diligence in pursuing amendments to pleadings where appropriate is illustrated in Valerio v. Andrew Youngquist Construction, supra, (2002) 103 Cal. App. 4th 1264. In Valerio, general contractor Birtcher Construction Services (Birtcher) solicited bids from painting subcontractors. It awarded the bid to Bart Valerio (Valerio), sent him two copies of the contract and told him that he would receive a fully executed contract after he returned his copy, signed, along with a performance bond. Valerio sent back a signed contract, but never provided a performance bond. As a result, Birtcher never provided Valerio with a fully executed contract. However, Birtcher allowed Valerio to begin work, eventually replacing him several months into the project with another contractor. Valerio was not paid for the work he did do, and so he sued alleging breach of an express written contract or, alternatively, quantum meruit. Birtcher filed a cross-complaint. In a court trial, the trial judge found there was no written agreement and awarded Valerio quantum meruit and attorney fees.2 The appellate court reversed and remanded. It held that Valerio was bound by its statement in its unverified pleading that a written contract existed. Why the finding of judicial admission in an unverified complaint? Valerio, in answer to the Birtcher’s cross-complaint, admitted an allegation that he had signed a written construction services trade contract with Birtcher on March 4, 1998. Valerio also admitted there was a signed written contract in response to a request for admission. Seven months before trial, counsel for Valerio advised the trial judge in his trial management conference statement that his client had made an error. He wrote: “Only after having gathered together all of the documents and having digested the deposition testimony of Birtcher’s Operations Manager did the actual status of the contract become clear. Birtcher

1. According to 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, section 413, pp. 510-511, an admission in a pleading is really a “waiver of proof of a fact by conceding its truth, and it has the effect of removing the matter from the issues.” 2. There is no explanation in the case for the basis of the award of attorney fees. 65

JULY/AUGUST 2012 SACRAMENTO LAWYER

Litigation

A View from the Civil Trial Bench: “The Cat’s Paw,” “Me Too,” and the “Stray Remarks” Doctrines: Admissible Evidence in Today’s Employment Trials By Judge Judy Holzer Hersher

Safeway district manager terminated him. Before firing him, the district manager did not review his personnel file, did not know of his commendations, and more importantly, did not know that Reeves had reported sexual harassment claims on behalf of women at the store. She also did not know that two of the alleged witnesses to Reeve’s “inappropriate” conduct were persons Reeves had reported for sexually harassing the female employees and who had motive to wanted to see him gone. In short, the Safeway district manager, who based her firing decision on the security department report, was unaware of any reasons why the witnesses against Reeves would “shade the truth.” She, and the store, thus sought to exonerate themselves from any discriminatory or retaliatory animus. (Reeves, supra, 121 Cal.App.4th at p. 104.)

hether brought in federal or state court, plaintiffs seeking damages for unlawful employment actions must prove a discriminatory “animus” toward them based on a protected status,1 a causal relationship between that animus and an adverse employment action,2 and damages. More often than not, the evidence in support of the claim is circumstantial and consists of comments made about or actions taken against the plaintiff or others similarly situated. Sometimes the statements or conduct that give rise to an inference of discriminatory animus are not attributed to the final decision maker with respect to the plaintiff’s employment status, but they are nonetheless alleged to have tainted the process by which the decision was made. Can these seemingly stray statements and actions by others or against others come into evidence? According to a series of recent cases, the answer is yes. The 17th century fable of ‘The Monkey and the Cat’ by French poet Jean de La Fontaine tells the story of co-conspirator “rogues” who plot to steal some tasty roasting chestnuts. (See box insert for the published verse.) The monkey clearly is the instigator. The cat is duped into pulling the chestnuts from the fire, ostensibly for the benefit of both, but for his part the cat gets his paws singed while the monkey gets the chestnuts. In modern employment law parlance, a “cat’s paw” has come to mean a corporate defendant or supervisor who is used by another to accomplish the other’s improper discriminatory purpose and who, in the process, winds up with a money judgment against them (i.e., burned paws). The California case often cited for admitting statement and conduct evidence giving rise to someone becoming another’s cat’s paw -- and thereby tainting the employment decisions with prejudice -- is Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95 (Reeves). William Reeves was a grocery clerk at Safeway for almost 30 years. Several women reportedly confided in him regarding their claims of sexual harassment. Upon reporting the same to his supervisor, Reeves met with resistance and antipathy as to any effort to help the women. At some point, an alleged series of incidents occurred where Reeves was charged with shoving a female employee, using profanity, and being intoxicated on the job. After an investigation and report by store security, a

SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2012

No More the “Defense of Ignorance”

Safeway’s “defense of ignorance” with respect to any discriminatory animus was rejected by the appellate court as an archaic paradigm. According to the justices, in modern day enterprises decisions that significantly affect personnel are “rarely if ever the responsibility of a single actor. As a result, unexamined assertions about the knowledge, ignorance, or motives of ‘the employer’ may be fraught with ambiguities, untested assumptions, and begged questions.” (Reeves, supra, 121 Cal. App. 4th at p.108.) After reviewing the appellate cases on point, the Sixth Appellate District held that ignorance of the motives behind those pushing for an adverse employment action “does not afford a categorical defense unless it extends to all corporate actors who contributed materially to an adverse employment decision.” (Id. at 109) In a section entitled “Cat’s Paw,” the court concludes that if a supervisor makes another his tool for carrying out a discriminatory action, the original actor’s purpose will be imputed to the tool, or through the tool to their common employer. (Id. at 113.)3 The application of the cat’s paw theory is consistent with the rejection of the strict application of the “stray remarks doctrine” discussed in Reid v. Google, Inc. (2010) 50 Cal. 4th 512 (Reid). Reid involved a former Google executive who sued for age discrimination under FEHA. In a motion for summary adjudication, he presented evidence that his co-workers and 66

would not spare the company from liability.’[Citations]” (Reid v. Google, Inc., supra, 50 Cal. 4th at pgs. 539-542.)

other high-level employees said he was “slow,” “fuzzy,” “sluggish,” and “lethargic. He also presented evidence that others said he “lack[ed] energy,” “did not display a sense of urgency,” and had ideas that were “obsolete” and “too old to matter.” Co-workers also reportedly called him an “old man,” an “old fuddy-duddy,” and joked that his office placard should be an “LP” instead of “CD.” His case was thrown out on summary judgment, but reinstated on appeal, in large part because the comments made by those around him constituted circumstantial evidence of an animus towards those over 40, and the fact that some of these commentators benefited by his removal. As the California Supreme Court explained, “stray remarks” are discriminatory comments from which a reasonable trier-of-fact could infer a discriminatory intent and were made by either: (1) a decision maker in a context unrelated to the adverse employment decision, or (2) by one other than the formal decision maker, but who is in a position to influence the decision. (Id. at pgs. 536-545.) In rejecting strict application of the stray remarks doctrine to eliminate evidence in support of a plaintiff’s case, the California Supreme Court, citing to both federal and state decisions, noted that the doctrine “contains a major flaw because discriminatory remarks by a non-decision making employee can influence a decision maker. ‘If [the formal decision maker] acted as the conduit of [an employee’s] prejudice -- his cat’s paw --the innocence of [the decision maker]

“The Task of Disambiguating Ambiguous Utterances…”

The Court added: “Although stray remarks may not have strong probative value when viewed in isolation, they may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence. Certainly, who made the comments, when they were made in relation to the adverse employment decision, and in what context they were made are all factors that should be considered.” (Reid v. Google, Inc, supra, 50 Cal. 4th at p. 541.) It then added: “[T]he task of disambiguating ambiguous utterances is for trial...”4 (Id. at p.541, citing to Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, 402.) For a recent example of the interplay between the stray remarks doctrine and the cat’s paw theory, see DeJung v. Superior Court of Sonoma County (2008) 169 Cal.App. 4th 533. In DeJung, comments allegedly made by the Sonoma County Presiding Judge and members of the court’s Executive Committee that they were seeking a younger man for the court commissioner’s job were found inadmissible for purposes of defeating a grant of summary judgment in favor of the Superior Court.5 The appellate court reversed. It reasoned that a trier-of-fact could reasonably infer from the comments that the decision of the interview committee, and ultimately the entire bench, not to rehire DeJung were tainted by discriminatory animus, even though some of the judges did not make or have knowledge of the earlier comments. The court held: “Under the established case law…DeJung need not demonstrate that every individual who participated in the failure to hire him shared discriminatory animus in order to defeat a summary judgment motion.” (Id. at p. 551.) Echoing the sentiments expressed in Reeves, supra, the DeJung court continued: “’[A]n individual employment decision should not be treated as a... [‘] watertight compartment, with discriminatory statements in the course of one decision somehow sealed off from…every other decision. … [‘]’” [Citations] (Ibid.) The recent United States Supreme Court case Staub v. Proctor Hospital (2011) 131 S.Ct. 1186 further cements the cat’s paw theory of admissible evidence. In Staub, an employee claimed unlawful employment discrimination prejudice against him because of his army reserve duties. The person (Linda Buck) who ultimately terminated plaintiff, did so without animus and without knowledge of the personal animus of others, including plaintiff’s immediate supervisor, Janice Mulally, and Mulally’s supervisor, Michael Korenchuk. However, it appeared Buck was prompted to take adverse action against the plaintiff by Mulally and Korenchuk, acting for themselves and others, who were angered by the extra work they had to do because of plaintiff’s military duty. As in Reeves, the terminating supervisor Continued on page 19

The Monkey and The Cat by Jean de La Fontaine Jocko the Monkey, Mouser--his chum, the Cat, Had the same master. Both were sleek and fat, And mischievous. If anything went wrong, The neighbors where not blamed. Be sure of that. Jocko, 'tis said was something of a thief; Mouser, if truth be told, would just as lief Much stolen cheese as chase the midnight mouse. The praise bestowed on either must be brief. One day these rogues, stretched flat before the fire, Saw chestnuts roasting. "Ah! Could we conspire To jerk them out," said Jocko, "from the coals, We'd smash the shells and have our heart's desire. "Come, Brother Mouser! This day 'tis your turn To do some bold and desperate thing to earn A reputation. You, who are so quick, Snatch out the nuts before they start to burn. "Alas! That I, a Monkey, was not made To play with fire. But you are not afraid." So Mouser--pleased, like many a cat or man, With pretty words--sly Jocko's wish obeyed. Into the fire he put a practiced paw: Out came a chestnut clinging to his claw-Another and another. As they dropped Jocko devoured them, whether roast or raw. A servant enters. Off the robbers run. Jocko, you may be sure, enjoyed the fun. But Mouser's paw is sadly singed--for what? Just to get nuts for Jocko. He got none.

SEPTEMBER/OCTOBER 2012 SACRAMENTO LAWYER

Litigation - continued from page 9

740, 763-767; and Tarle v. Kaiser Foundation Health Plan, Inc. (2012) 206 Cal.App.4th 219. These newer cases call into question the continuing validity of Beyda v. Los Angeles (1998) 65 Cal.App.4th 511. Beyda held that acts of harassment or discrimination against persons other than the plaintiff are inadmissible character evidence under Cal. Evid. Code §1101(a). The newer cases, such as Pantjoa, permit the evidence under Cal. Evid. Code §1101(b), to show motive, intent, plan, absence of mistake or accident. Taken together, the cat’s paw theory of liability, the admissibility of ‘me too’ evidence, and the rejection of the strict application of the stray remarks doctrine require attorneys and the court to examine in context the totality of comments and actions made by persons in a position to influence decision makers in employment actions. Thus, if you can whiff singed fur or place comments or inappropriate conduct within the relevant time frame, absent undue prejudice, an improper foundation or valid hearsay exception, the evidence will come in.7

reportedly engaged in an independent investigation of plaintiff by reviewing his personnel file; but the file contained information and accusations tainted by Korenchuk, which Buck failed to check for accuracy. Although the case was decided under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301 et seq., the United States Supreme Court noted that the statute is “very similar to Title VII, which prohibits employment discrimination “because of…race, color, religion, sex, or national origin.” It concluded that a corporate party may be responsible for its biased supervisor’s actions under the traditional tort-law concept of proximate cause where the supervisor performs an act motivated by a discriminatory animus that is intended to cause an adverse employment action if that act is a proximate cause of the ultimate adverse employment action. What if a decision maker relies on his or her own independent investigation to support the firing or demoting of an employee? According to Staub, “… if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action (…which is the employer’s burden to establish…), then the employer will not be liable. But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.” (Staub v. Proctor Hospital, supra, 131 S.Ct. at p.1191.) 6 The Supreme Court continues: “We are aware of no principle in tort or agency law under which an employer’s mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of “fault.” The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision.” (Id. at p.1192.)

1. Under the California Fair Employment and Housing Act (FEHA), protected status includes race, religion, sex, national origin, ancestry, physical disability, mental disability, medical condition, marital status, age, or sexual orientation. (Government Code § 12940(a)) Under Title VII of the federal Civil Rights Act, protected status includes race, color, religion, sex or national origin. (42 U.S. Code § 2000e-2) Age and disability discrimination are addressed in the federal courts under the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act (ADA). (29 U.S. Code § 621 et seq. and 42 U.S. Code § 12131 et seq.) 2. The relevant CACI jury instructions refer to this as a “motivating reason” for the adverse employment action. (See, e.g., CACI 2500 et seq.) 3. See also the statement and accompanying citations that the “cat’s paw” model, or a functional equivalent, has been adopted or referred to approvingly in all but one of the federal circuits. Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 114-115. 4. As Reid explains at pgs 536-537, the stray remarks doctrine arises from a concurring opinion by former United States Supreme Court Justice O’Connor in Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 276, in which a plaintiff sued her employer for sex discrimination. The Justice wrote that “stray remarks”-“statements by non decision makers, or statements by decision makers unrelated to the decisional process itself”-do not constitute direct evidence of decision makers but can be probative of discrimination. Reid also examines federal court decisions post the 1989 case. 5. The grant also was erroneously based on a public immunity doctrine, which was rejected as well. 6. The Court rejected the employer’s argument that its independent evaluation and investigation should be sufficient as a hard and fast rule to negate the effect of any prior discrimination. The Court stated: “[Defendant employer’s] view would have the improbable consequence that if an employer isolates a personnel official from an employee’s supervisors, vests the decision to take adverse employment actions in that official, and asks that official to review the employee’s personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action. That seems to us an implausible meaning of the text, and one that is not compelled by its words.” (Staub v. Proctor Hospital (2011) 131 S.Ct. 1186, 1193.) 7. All evidence is subject to rejection under the balancing test of Cal. Evid. Code § 352 (prejudicial value outweighs the probative value), lack of personal knowledge (Cal. Evid. Code §702) or inadequate foundation (Cal. Evid. Code §400 et seq.). It may also be inadmissible under Cal. Evid. Code § 1101(a) if section (b) (evidence of character inadmissible except opinion, reputations, specific instances of conduct admissible to prove motive, intent, plan, knowledge, absence of mistake or accident) doesn’t apply.

“Me Too” Evidence is Alive and Well

The above holdings are consistent with other cases that address the “me too” evidence in employment cases. “Me too” evidence generally consists of testimony by other employees who have experienced illegal discrimination or harassment at the hands of the same defendants. Finding there is no wholesale reason for rejection of such evidence, the cases allow the testimony for the same reason that “cat’s paw” and stray remarks evidence are admissible. Specifically, it is relevant as circumstantial evidence of discriminatory intent or animus, the employer’s alleged knowledge of the conduct of its supervisors, and/or defendant’s failure to conduct adequate investigations to uncover improper reports. (See, e.g., Pantoja v. Anton (2011) 198 Cal.App.4th 87, 112; Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 68

SEPTEMBER/OCTOBER 2012 SACRAMENTO LAWYER

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

Litigation

A View from the Civil Trial Bench

“Technology in the Courtroom: Should the Prevailing or Losing Party Pay?”

By Judge Judy Holzer Hersher

1292.) Post 1986 cases involving technology costs often start with a discussion or reference to Section 1033.5(a)(13), which identifies “models and blowups of exhibits and photocopies of exhibits” as allowable costs “if they were reasonably helpful to aid the trier of fact,” and Section 1033.5(c), which provides for an award of costs not otherwise mentioned “in the court’s discretion.” The not otherwise mentioned costs, however, must be “reasonable in amount” and “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial.” (Code Civ. Proc. §§1033.5, subds. (c)(2),(c)(3) and (c)(4).) It is the later criteria that the cases focus on.

wenty-first century trials and jurors benefit from twenty-first century technology in the courtroom. The attorneys know it and the court knows it. Yet the legal question remains, who should bear the costs associated with presenting evidence through this ever changing and expensive technology? And then there are the more specific questions. Should the prevailing party in a civil trial be awarded the cost of a specially trained audiovisual technician or consultant that has diligently provided services throughout the trial? What if this person is an in-house specialist or paralegal? What about the cost of the equipment itself? How about the artful and graphic presentation of an injury or disease mechanism or the compilation of extensive financial transactions or work costs, or a computerized data bank? What if an attorney provides computers and special equipment for use by all jurors during trial? Is there any return on the investment by way of a cost award for the successful litigant or should these costs be built into attorney and law firm overhead? What are the policy considerations that inform the discussion and the decision?

Reasonably Necessary to the Conduct of the Litigation

Two appellate cases currently inform the analysis of when certain technology-related costs should be awarded by a trial judge. The two cases are Science Applications International Corp., v. Superior Court of San Diego County, (1995) 39 Cal.App.4th 1095 (Science Applications), and El Dorado Meat Co., v. Yosemite Meat and Locker Service, Inc., (2007) 150 Cal.App.4th 612 (El Dorado Meat Co.). 2 Together, they address what “reasonably necessary to the conduct of the litigation” under section 1033.5(c) requires before a discretionary award of technology costs is made. In Science Applications, the winning state agency was awarded $464,908 in costs after a jury returned a verdict in its favor. The award covered a $9,916 graphics communication system, which included equipment rental; $11,983 for fees associated with providing a technician in the courtroom to manage and present the information; $35,652 to have videotape depositions edited; $47,481 for exhibit boards and laser disks containing trial exhibits; and $200,000 for document control and a database system. The trial court justified the award by stating that the overall use of the technology reduced the time of trial, and thus was “reasonably necessary to the litigation,” and the graphics technology was “the modern equivalent to models and blow-ups,” thus, by extension, the other costs were recoverable under section 1033.5(a)(13) -- i.e., models and

What Are Allowable Costs?

We are rapidly becoming a citizenry used to computers, video clips, charts, pictures and graphics specifically designed to help us visualize, analyze and retain information. It is as true now as it was a generation ago: a picture -- preferably one in high definition color shown on a 6 feet by 8 feet screen -- is better than 1000 words. But are these enhanced presentation tools merely convenient or beneficial to the business of trials, or are they reasonably necessary in today’s modern courtroom, such that the associated costs should become more or less a routine award? As civil litigators know, the prevailing party at trial is entitled as a matter of right to recover certain of his or her costs. Typical costs are identified by statute as “allowable” and “not allowable.” (See Code Civ. Proc., §§ 1032, subd. (b) and 1033.5.)1 Case law states that when the statute was enacted in 1986, it “codified existing case law.” (Van de Kamp v. Gumbiner (199) 221 Cal.App.3d 1260, 1291-

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Litigation rationale of Science Applications, the trial court lacked discretion to award these costs because they were not “reasonably necessary,” but merely “convenient or beneficial” under section 1033.5(c). Unlike the Fourth Appellate District, the Fifth Appellate District affirmed the bulk of the trial court’s awards under section 1033.5(c)(4), holding that the awards were within the trial court’s discretion because of the specific factual issues and evidentiary challenges presented by the case. (El Dorado, supra, 150 Cal.App.4th 612 , 617-618.) Both the trial and appellate courts focused on the reasonable necessity of having to summarize a voluminous amount of business records and organize important factual data in a meaningful way, such as compensation to employees, meat purchases, and sale prices per pound. The high tech exhibit apparently compiled financial performance data over a 20-year period. The court also separately affirmed the award of $2,250 for the equipment needed to project the documents onto a screen under section 1033.5(a)(12), which allows for an award for “blowups of exhibits” if “reasonably helpful to aid the trier of fact.” (Id. at 619.) The court reasoned that one cannot show blowups of high tech charts and graphs without the right equipment.4 El Dorado discusses Science Applications as follows: The problem with the electronic equipment and labor costs rejected in Science Applications, as we understand it, was that these were more expensive methods of doing things that could be done by less expensive, low-tech means, and therefore they were not reasonably necessary to the conduct of the litigation, but were “merely convenient or beneficial to its preparation.” (CCP section 1033.5, subd. (c)(2).) Here, there is little doubt that using computers and suitably trained personnel to compile the data upon which exhibit 600 was based was more efficient than any low-tech method of doing the same thing. The idea that the cost is not allowable because the exhibit could have been created using adding machines, ledger paper, and pencils instead of electronic databases is antiquated. (El Dorado, supra, 150 Cal.App.4th 612, 620.)

blowups of exhibits reasonably helpful to the trier of fact. The court further stated that the technician fees were an “integral and necessary component of the graphics,” and therefore the state agency could recover these expenses under section 1033.5(a)(13). (Science Applications, supra, 39 Cal.App.4th 1095, 1099.) The appellate court ruled otherwise. It let stand the award of the graphic exhibit boards (large trial exhibit boards) that went to the jury for consideration, as well as the costs associated with a video, which it found to be a computerized blowup, or model, under section 1033.5(a)(13).3 However, it found the trial court had improperly awarded costs for the expense of the graphics communication system, the laser discs, and the on-site technician who operated each. (Science Applications, supra, 39 Cal.App.4th at pp. 1104-1105.) Although the graphics communication system presented documentary evidence and exhibits to the jury, the court reasoned that this technology was only a high-powered way of storing and retrieving documents and creating databases to search for records. It further found that the costs associated with developing or retrieving the documents was akin to a paralegal managing documents in the courtroom. Since paralegal fees are not compensable as costs under section 1033.5, the court reasoned that the modern day equivalent of that task should not be as well. (Science Applications, supra, 39 Cal.App.4th at page 1105.) Finally, the appellate court found the computer editing of videotaped depositions was not reasonably necessary, but simply convenient or beneficial, since the party could have elected to have one lawyer read the relevant questions, and another the answers into the record. (Ibid.) In closing, the court discussed what it saw as the tension between technological advances and their sometimes staggering associated costs, which could lead to some being unable to litigate for fear of the cost award. (Ibid.) Twelve years later, in El Dorado, supra, 150 Cal.App.4th 612, another appellate court appeared to open the door to a more liberal approach to the award of these costs. Yet the case is very much tied to its facts. The trial court awarded $84,783 to prevailing party Yosemite to cover the cost of an accounting firm to compile and summarize approximately 160,000 pages of business records which would otherwise be used at trial, and $26,281 for non-attorney law firm personnel engaged in data entry from the voluminous business records. An additional $30,495 was awarded for photocopying the source documents necessary to create a 37page trial exhibit (Exh. 600), and $2,250 for the equipment to project the special exhibit and supporting documents on screen. (Id. pages 615-616.) The non-prevailing party challenged the trial court’s cost award, arguing that under the

Applying the Principles

Stepping back from the two cases, and unless and until section 1033.5 is modified by statute, the distinction between awarding and denying a specific technology cost appears to be: 1) that if the technology makes the evidence more physically clear or organizes and presents information not otherwise immediately available in a way that makes it understandable to the jury and judge; and 2) further makes Continued on page 32 71

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Civil Trail Bench continued from page 9 it unnecessary to present the same evidence in a more time-consuming manner, thereby saving judicial resources, it is “reasonably necessary to the conduct of the litigation.” The El Dorado court, for example, clearly distinguished between the creative act of compiling and summarizing data to make it easier to comprehend, as opposed to a “document library” that just makes it easier for counsel to locate a potential exhibit when he or she needs it. If the attendant costs fall

into the former category, they are more likely recoverable.5 Although not addressed by the appellate cases, it also seems reasonable that a trial judge will likely consider: 1) the manner and use of technology by all parties during the trial in order to determine which costs are reasonably necessary; and 2) whether the billing records provide a sufficient and detailed enough breakdown by category to allow the court to appropriately exercise its discretion. At least two other appellate cases have awarded costs associated with the use of modern technology and equip-

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SACRAMENTO LAWYER NOVEMBER/DECEMBER 2012

ment at trial -- $19,307.33 for the imaging of documents and the equipment needed to display those documents -where the trial judge found the presentation to be “highly effective, efficient, and commensurate with the nature of the case.” (Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1623; American Airlines, Inc., v. Sheppard, Mullin, Richter & Hampton, et al., (2002) 96 Cal.App.4th 1017, 1057.) 1. All further statutory references are to the California Code of Civil Procedure unless otherwise stated. 2. A third case currently before the California Supreme Court has as one of its issues whether visual aids used in a party’s closing argument are, or are not, “reasonably necessary” to the conduct of the litigation and thus awardable as costs. Raymond Martinez v. Brownco Construction Co., Inc., (2012) 203 Cal.App. 4th 507, is currently not citable and has been superseded by a grant of review by the California Supreme Court on May 9, 2012. 3. The case cites to section 1033.5(a)(12), but the relevant section is now (a)(13) after a new section dealing with court interpreters was added in 2011. 4. Both the trial and appellate courts awarded the costs despite the statement that the evidentiary support regarding the breakdown of these costs was “light.” The appellate court commented on this only to the extent it discussed the burden of proof of the parties on appeal -- i.e., a trial court award of costs will not be overturned unless the evidence was “so light as to be insubstantial.” (El Dorado Meat Co. supra, 150 Cal.App.4th 612, 617-619.) 5. A party who uses electronic equipment to present documentary evidence at trial can still potentially recover costs associated with the photocopying these exhibits and having them available as hard copies during trial for use by the jury and for review by the witnesses and the judge. (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 59.)

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Litigation

A View from the Civil Trial Bench

State of California v. Continental Ins. Co., et al., and the All Sums With Stacking Rule: An Insurance Decision with Broad Implications

By Judge Judy Holzer Hersher

rounding environs and groundwater. He was wrong.

recent unanimous California Supreme Court decision is a game changer in insurance coverage cases—at least for now.1 The case, State of California v. Continental Insurance Company, et al. (2012) 55 Cal. 4th 186 (“Continental”), interprets the promise to pay “all sums” to injured third parties2 in an insurance contract to mean the policy limits of that contract, and not a pro rata share, even where some of the damages may have occurred before, during or after a specific policy period. Despite the fact that it is discussed in the context of massive amounts of environmental contamination cleanup costs, the holding may well affect the future interpretation of insurance contracts covering other types of cases where damages have progressed slowly and continuously across policy periods, such as construction defects, land subsidence, and mold cases. In Continental, the State of California (“State”) sought indemnity under successive insurance contracts for the costs associated with a federal court-ordered cleanup of the Stringfellow Acid Pits. The waste site operated between 1956 and 1972. The State had insurance for its operation between 1964 and 1977, but not before or after. A government geologist earlier had determined that the particular canyon used for the waste site in Riverside, California, could, with the placement of a concrete dam, hold 30 million gallons of industrial waste without contaminating the sur-

Between 1969 and 1978, miles of contaminants were released at the Stringfellow site into local waterways, polluting land and groundwater and causing personal injury. Cleanup and other costs were identified at between $50 and $700 million. The facts presented a scenario not uncommon in many coverage disputes: individual injuries that progress slowly but continuously over many years, and in some cases beginning before and continuing beyond the period of a particular insurance policy. These are sometimes referred to as “long-tail injuries.”3 As might be expected, the affected parties pointed fingers at each other during the liability phase, claiming multiple causes of the contamination, such as inadequate geological studies, heavy rains, the fractured rock underlying the canyon floor, the controlled and not so controlled discharges from the site, and the actions of the entities who sent their waste to the Stringfellow site in the first place. The parties claimed that some or all of these factors were an independent and/or compounding cause of the massive property and personal injury damages that arguably occurred at different times and under different policies. As might also be expected in a case of this magnitude, years of litigation ensued between the State and its insur-

SACRAMENTO LAWYER JANUARY/FEBRUARY 2013

The Slow But Continuous Damage Scenario that Spans Policy Periods

ance companies on coverage. The lower courts were faced with the task of determining which of the successive commercial excess4 policies issued between 1964 and 1976 could be called upon to indemnify for the cleanup and other injuries, and, more importantly, in what amount. The Straightforward Conclusion that Cost Millions

The Supreme Court’s answer seems decidedly simple. It held that since all the policies at issue obligated the insurers to pay “all sums” identified as covered damages, each was on the hook to pay just that…all sums that the insurer had become obligated to pay because of the terms of its contract. (Continental, supra, 55 Cal. 4th at p. 200)5. The court went on to hold that unless the contract states otherwise, California courts will not pro rate an insurer’s obligation to indemnify its insured, or parse out what part of the indivisible, progressive damages occurred during the policy period if the damages meet or exceed the policy limits. According to the Supreme Court, insurers of the risk can seek contribution from each other, if they feel it is appropriate, after they pay their policy limits. Andy issues and complications surrounding such subsequent contribution actions are left for another day. (Ibid.)6 The court also held that the State could “stack” or combine the full policy limits of each obligated policy, thus

increasing the amount of insurance coverage available to pay for the cleanup. It did so because it found that in this and similar circumstances, where the losses exceed one policy’s single limits, this “potentially leaves the insured vastly uncovered for a significant portion of the loss", as in fact the State was in this circumstance. The court further reasoned that stacking was consistent with the “all sums” language and the insured had bargained for and paid for such “all sums” coverage over multiple policy periods. The State was therefore entitled to the full amounts. (Continental, supra, 55 Cal. 4th at pgs. 200-201).

reciting in broad terms the general agreement between the parties. This section of the policy, called the “insuring agreement”, explains what the insurer is covering -- at least before it starts enumerating any number of exceptions and definitions that may limit coverage. As all insurance coverage decisions note, the rules of contract law apply to the interpretation of the language the parties agreed to in an

insurance contract. Thus, all cases of insurance coverage begin with a discussion of the principles of contract interpretation and their application in the insurance context. (See Continental, supra, 55 Cal. 4th at pgs.194-195, reciting the principles). The relevant “insuring agreement” in the Continental policies read as follows: The insurer agrees “[t]o pay on behalf of the Insured all sums which

The Insured Reasonably Expected Coverage Up to the Policy Limits for Each Year of Purchased Coverage

Finally, and perhaps with the most far-reaching consequences, the court explained that the “all sums with stacking” approach is consistent with public policy since: 1) it resolves the question of insurance coverage in an equitable manner; 2) it comports with the parties reasonable expectations that the insurer expects to pay for property damage occurring during a long-tail loss up to its policy limits; 3) the insured reasonably expects indemnification for the time periods it purchased coverage; 4) there is an uncomplicated calculation that looks at the long-tail injury as a whole rather than fractured pieces artificially broken it into distinct periods of injury; 5) the insured has paid more than one premium and should reap those benefits; and 6) there is nothing fundamentally unfair about stacking. (Continental, supra, 55 Cal. 4th at pgs. 201-202).

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What Law Did the Court Apply to Get its Result?

First, of course, it looked at the language of the contracts before it. Insurance contracts typically start by 75

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the Insured shall become obligated to pay by reason of liability imposed by law … for damages … because of injury to or destruction of property, including loss of use thereof.” (Italics added). The court had discussed the “all sums” language in earlier contamination cases. In Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal. 4th 645 (“Montrose”), the court looked at what must take place within the policy period for there to be the potential for coverage -- that is either a defense or indemnification of any cleanup. (Id. at p. 655, fn.2). It ruled that based on the contract before it, the “all sums” language charged insurers with paying for property damage that is continuous or progressively deteriorating throughout any policy in effect during those periods, so long as some damage from the conditions occurred during the policy in question. This specifically included property damage and bodily injury that resulted from hazardous chemicals

that the insured manufactured beginning before, but continuing during the insurer's policy period. (Id. at pgs. 668-673; italics added)7. In Aerojet-General Corp. v. Transport Indemnity Co. (1997) 17 Cal. 4th 38 (“Aerojet”), at page 57 fn. 10, the court affirmed the duties under the “all sums” language and held that any policy on the risk when property damage or personal injury occurred is liable for any and all resulting damage, up to its policy limits, even when the damages took place before, during or after the relevant policy period. “…[A]s long as the policyholder is insured at some point during the continuing damage period, the insurers' indemnity obligations persist until the loss is complete, or terminates.” (Id. at p.56-58)8. None of the earlier cases dealt squarely with how much of the policy limits from each individual policy should be made available to indemnify the insured. Prior to Continental, it was not uncommon for the parties

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and the courts to craft various equitable allocation formulas based on the specific facts of the case in order to determine each insurer’s pro rata share or other formula-based contribution for the totality of the claims. Absent Contrary Language, Pro Rata Allocation is Not the Default Allocation Formula

Continental, however, has changed all that -- at least where the quoted “all sums” language appears in the contract and there is no contrary language. The court rejected the use of a pro rata allocation formula to apportion indemnification or defense costs, pointing to the clear and unambiguous language of the insuring agreement to cover “all sums” the insured was obligated to pay. It held that since multiple policies were triggered by the conditions stated in their respective contracts, each insurer was on the hook to pay out its policy limits on each policy, and in this instance that included damage that had progressed slowly and continuously during and beyond the actual contract period. “We therefore conclude that the policies at issue obligate the insurers to pay all sums for property damage attributable to the Stringfellow site, up to their policy limits, if applicable, as long as some of the continuous property damage occurred while each policy was ‘on the loss.’” (Continental, supra, 55 Cal.4th at pg. 200). “The coverage extends to the entirety of the ensuing damage or injury (Montrose, supra, 10 Cal.4th at p. 686), and best reflects the insurers’ indemnity obligations under the respective policies, the insured’s expectations, and the true character of the damages that flow from a long-tail injury.” (Ibid.). “Under the CGL policies here, the plain ‘all sums’ language of the agreement compels the insurers to pay ‘all sums which the insured shall become obligated to pay…for damages… because of injury to or destruction of property….’” (Ante, at p. 199). “As

the State observes, ‘[t]his grant of coverage does not limit the policies’ promise to pay ‘all sums’ of the policyholder’s liability solely to sums or damage ‘during the policy period.’” (Ibid.). The Supreme Court closes on both a cautionary and instructive note. Since the Court was simply interpreting the contract before it, future contracting parties can avoid stacking or the payment of “all sums” by writing this provision out of the contract, or by limiting it. They can also provide for an equitable or pro rata allocation for indemnity, if they so choose. 1. The impact of the decision is discussed in numerous published and online periodicals. See, e.g., Cassidy, Talieh and McMahon, “All-Sums-With-Stacking Ruling Boosts Insurance Recovery in California,” 2012 Emerging Issues 6590, (August 23, 2012) Matthew Bender & Co., Inc. 2. Third party litigation is to be distinguished from suits between an insured (first party) and its insurer for coverage on claims by the insured for the insured. The later is called first party litigation. Third parties are persons or entities that have allegedly suffered from the actions of the insured and for whom payment of damages under the insurance policy was intended. 3.“…The kind of property damage associated with the Stringfellow site, often termed a “long-tail” injury, is characterized as a series of indivisible injuries attributable to continuing events without a single unambiguous “cause.” Long-tail injuries produce progressive damage that takes place slowly over years or even decades.” (Continental, supra, 55 Cal. 4th at p. 196, referencing Hickman & DeYoung, Allocation of Environmental Cleanup Liability Between Successive Insurers (1990) 17 N.Ky. L. Rev. 291, 292.) 4. As described in footnotes 2 and 6 of the decision on pages 192 and 201: “Excess liability insurance is coverage “whereby, under the terms of the policy, liability attaches only after a predetermined amount of primary insurance has been exhausted” (2 Cal. Insurance Law & Practice (Matthew Bender 1986) The Insurance Contract , section 14.02[1], p. 14-4.) Frequently there are several layers of secondary coverage, sometimes referred to as “excess insurance.” (Ibid.; see Ins. Code, section 676.6, subd. (b).)”…“This case is the first in our court to consider the

stacking of excess policies in the continuous property loss scenario.” 5. The policies at issue did not contain language in the all important insuring agreement section that would have limited their responsibility to indemnify only for damage that occurred during the policy period. (Continental, supra, 55 Cal. 4th at p. 199.) 6. For example, where are the funds supposed to come from when one insurer sues another for contribution, when both or several have paid their policy limits to the third party insured? Does this mean that if insurers #1, 2 and 3 were obligated by their policies for $1 million, and paid it out, and then seek contribution against each for

some of $1 million they paid, will an insurer owe more than the value of the contract it bargained for with its insured? Or does this mean that once the policy limits are paid, there is no further recourse for contribution against that insurer and contribution can be sought only from those who have not contributed their policy limit? 7.The author cautions that the case depends also upon the interpretation of numerous terms in the policy at issue and therefore is tied to the actual policy language at issue in Montrose. 8. The same limitations with respect to interpretation based on contract language apply with respect to this case as well.

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Litigation

A View from the Civil Trial Bench: Computer Animation Evidence in Jury Trials

By Judge Judy Holzer Hersher

ometimes the best legal precedent available to civil litigators is found in criminal case law. With respect to the use of computer animation during trial, this is presently the case. In August of 2012, the California Supreme Court published its decision in People v. Duenas (2012) 55 Cal. 4th 1 (hereinafter “Duenas”). The case involved a defendant who shot and killed a deputy sheriff. The jury that heard the evidence had to decide how the shooting happened, whether the defendant intentionally committed the murder to avoid a lawful arrest, and whether he knew or should have known that the victim was a peace officer performing his duties. If the answer to any of these questions was “yes,” the defendant was subject to a first degree murder conviction and the death penalty. The jury answered yes and the defendant was sentenced to death. One of the legal challenges made by the defense before the state high court in the appeal that followed was the admissibility of computer generated evidence used by the prosecution’s expert witnesses to support the theory that the murder was premeditated and deliberate. During trial, two prosecution witnesses, Dr. Carley Ward, an expert in biomechanics, and her son, Parris Ward, a computer graphics expert, showed the jury a four-minute series of computer generated drawings depicting the scene of the crime. The animation consisted of a series of mostly still images “drawn to give the

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impression of three-dimensional space.” It included a computer-generated street scene with various perspectives on where the shooter allegedly stood, how the body reacted after the officer was shot repeatedly over the relevant period of time, and where each of several stray bullets landed. Importantly, all of the illustrations were based on testimony given by the persons who performed the autopsy, wrote the police reports, took photographs and measurements at the crime scene, examined the deceased officer’s bulletproof vest, and collected blood-spatter and other available evidence. (Duenas, at p.18.) Each drawing also allowed the viewer to visualize the scene from different angles. The figures in the drawings were essentially stick figures, with no distinct facial features. Their faces showed no expression. The computer drawings had hyperlinks to statements from key witnesses, including the defendant, which appeared on screen next to the stick figures as the expert testified and gave her opinions. Some of the computer-generated drawings were superimposed with explanatory remarks, such as “bullet goes through hand here” or “impact point” there, followed by links which further imposed color crime-scene photos onto the drawings. Animations “Akin to Charts or Diagrams”

Computer generated evidence generally falls into one of two categories: animation or simulation. 78

As explained in Duenas, computer animation is often used to illustrate an expert’s testimony and is more often than not designed to help the jury understand the expert’s testimony. It is therefore considered “akin to charts or diagrams.” (Duenas at p.20 [citations]; People v. Hood (1997) 53 Cal.App.4th 965, 969.) Although it may be presented to and discussed in front of the jury during a party’s case, computer animations are often not admitted into evidence, and thus may not be reshown to the jury during closing. They typically are not available to the jury in the deliberation room. Animations may be used during a party’s case because they are “evidence,” albeit not necessarily admissible evidence, as that term is defined in Evidence Code section 140 (“…writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.”), and because they are considered “writings” pursuant to Evidence Code section 250 (…“any form of communication or representation, including letters, words, pictures, sounds or symbols or combination thereof…”), so long as they are otherwise supported by an adequate foundation. (See Evidence Code section 402(c): “A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto…”). Every animation must therefore be based on admitted evidence or the reasonable inferences therefrom as explained by the witness; otherwise it

is subject to objection if it does not. Simulations, on the other hand, contain as part of their creation scientific assumptions or physical principles separate and apart from the admitted evidence. A computer, for example, may be programmed to use a novel or generally unaccepted scientific, mathematical or other principle as part of its analysis, or it may adopt a novel method of proof as part of its assumptions. In simulations, experts are relying on these built in novel theories or assumptions to render their opinions. As a result, simulations usually require a preliminary hearing and a showing that any new scientific or other utilized assumption or technique has gained general acceptance in the relevant expert community. In short, simulations must be tested against the rules for admission of new scientific or physical principles because they contain within them substantive evidence. (Duenas, at pg. 20-21 [citations]; People v. Kelly (1976) 17 Cal.3d 24, 30; see also People v. Hood, supra, (1997) 53 Cal.App.4th at pp. 969–970.)

into uncritically accepting the version of events depicted in the animation,” and thus should have been excluded under Evidence Code section 352 because its probative value was substantially outweighed by the probability that its admission would create a substantial danger of misleading the jury. The defense, borrowing from arguments generally made against simulations, asserted that the animation

tended to give the evidence “a posture of mystic infallibility in the eyes of a jury, gave the prosecution's case “an unwarranted aura of scientific certainty,” and was cumulative of other evidence. (See Duenas, at p. 18, discussing the holdings of People v. Hood, supra, 53 Cal.App.4th at p. 969, and People v. Kelly, supra, 17 Cal.3d at p. 32, which found that with respect to certain scientific processes -- particu-

Avoiding “Mystic Infallibility”

Animations —based on everything from photos to videos and computer re-creations—have the ability to significantly impact a juror’s assessment of the evidence. They make real, and thus more tangible to the senses, what can be an un-engaging or confusing narrative by a witness. As in all cases where they are proffered -- civil or criminal -- the opposing party often objects to animations because of their potential to not only highlight and illustrate in a more memorable way, but because of their potential persuasive power. In Duenas the defendant agreed the computer presentation was an animation and not a simulation. However, he argued that the animation was “likely to beguile the jurors

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Checklist for Admissibility of Computer Generated Evidence (Animation) as Demonstrative Aid, by Judge Judy Holzer Hersher. Based on the decision in People v. Duenas (2012) 55 Cal.4th 1

cautioned, as part of their testimony, that the animation represented their best estimate of how the crime occurred, while at the same time acknowledging that they could not tell the jury “specifically [that] that’s exactly how they happened.” (Duenas, at pgs.22-23.) In her closing argument, the prosecutor herself acknowledged that the animation was for use only to explain the expert’s opinion. Upon this record, the court found that the presentation was not imbued with “mystic infallibility.” The Question is Not Indisputable Accuracy, but Accurate Representation of the Witness’s Testimony

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

larly those experimental in nature -that “…‘[S]cientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury…’ [Citation.]”) The Supreme Court rejected defendant’s argument that the animation gave the prosecution’s case an unwarranted aura of scientific certainty, finding that defendant’s real argument was with the conclusions the prosecution’s experts drew from the available evidence and their reliance on the scientific discipline, recognized and accepted by the courts, of human body biomechanics.

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The court also pointed to a limiting instruction given by the trial judge. It cautioned the jury that: “What you’re going to see is an animation based on compilation of different expert opinions. This is similar to the expert using charts or diagrams to demonstrate their respective opinion. This is not a film of what actually occurred or an exact re-creation. It is only an aid to giving you a view as to the prosecution version of the events based upon particular viewpoints and based upon interpretation of the evidence.” (Duenas, at p.22.) The experts themselves also 80

The Supreme Court further held the animation was relevant, as it was concerned with the question of premeditation and deliberation, a key issue in the trial. It also agreed with the trial court that the animation was not speculative. Prior to presentation to the jury, the trial court held an Evidence Code section 402 hearing, considered the other admissible evidence, and determined that the animation was sufficiently grounded on this evidence. The question that needs to be asked, according to the high court, is “not whether the animation represents the underlying events of the crime with indisputable accuracy, but whether the animation accurately represents the expert’s opinion as to those events” and how they unfolded. (Duenas, at p. 22.) The Supreme Court found that the grounding of the animation on other admissible evidence, combined with the limiting instruction by the trial judge, the statements of the experts on the limitations of their presentation, and the prosecutor’s closing argument reminding the jurors of the same, mitigated against any potential that the probative value of the demonstrative aid was outweighed by the risk of undue prejudice to the defen-

dant. (Duenas, at p.24.) Finally, the high court dispensed with the challenge that the animation was cumulative because it repeated the testimony of the prosecution witnesses, instead holding that the argument “misapprehends the animation's role” as a demonstrative aid, not as substantive evidence. Thus, it was properly admitted as “a tool to aid the jury in understanding the substantive evidence.” (Duenas, at p. 25.) A checklist based on the Duenas holding and discussion accompanies this column for the use by counsel arguing for or against animations in civil and criminal jury trials. (See Checklist on previous page.) 1. See CACI 5020 “Demonstrative Evidence” which reads: “During the trial, materials have been shown to you to [help explain testimony or other evidence in the case/ [specify other purpose]]. [Some of these materials have been admitted into evidence, and you will be able to review

them during your deliberations.] Other materials have also been shown to you during the trial, but they have not been admitted into evidence. You will not be able to review them during your deliberations because they are not themselves evidence or proof of any facts. You may, however, consider the testimony given in connection with those materials.” 2. See Jefferson’s California Evidence Benchbook: Animation is based on already admitted foundational evidence and is used solely to illustrate the expert’s point; simulation involves expert opinion testimony arrived at or only based on or derived from the computer or models conclusions, thus becoming substantive evidence. (2 Jefferson, California Evidence Benchbook, (4th ed. March 2012 Update) Admissibility of Electronic Evidence, section 33.59, page 790.1.) 3. Biomechanical engineers and testimony by biomechanical engineers are not uncommon in civil or criminal jury trials. As explained by one of the experts in this case, biomechanics “entails the application of engineering principles and physics to “the human structure.” (Duenas, at p.18.)

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Litigation

A View from the Civil Trial Bench: “Gatekeepers:” A Dramatic Analogy Between Expert Testimony and the Movie Ghostbusters

he 1984 movie Ghostbusters is based on the story of three former Columbia University professors (Bill Murray, Dan Aykroyd and Harold Ramis) turned ‘parapsychologists’ who start a ghost catching business. The film’s central theme is built on the premise that Gozer, an unsavory Sumerian god of destruction, is attempting to enter Earth. Trapped in a physical plane atop a New York City building, Gozer can only be released to wreak havoc once the “Gatekeeper,” occupying the body of actress Sigourney Weaver, connects with the “Keymaster,” Rick Moranis. Before being hired to send Gozer back from where he came and close the gate behind him, the Ghostbusters must convince the mayor and others that their science is not only credible, but worthy of acceptance and use. The movie’s construct is not so different from that of an attorney who wants the court to allow an expert to present a theory of damages to a jury. As in the iconic Ghostbusters scene where the scientists discuss whether the method they will use to rid the world of Gozer is too speculative and place their client’s interest in danger1, in the courtroom the question is whether the expert’s opinion is too speculative and therefore too dangerous to present to the jury? And as in Ghostbusters, the courtroom gatekeeper2 or judge plays an important role. Protecting juries from “an array of figures conveying a delusive impression of exactness in an area where a jury’s common sense is less available than usual to protect it.”3 This past Thanksgiving a unanimous California Supreme Court issued Sargon Enterprises v. University of Southern California (2012)55 Cal. 4th 747 (“Sargon”). In its decision the court considered the actions of the judicial “gatekeeper” in keeping speculative expert testimony from a jury in the context of lost profits. The case contains many memorable quotes. The high court clearly decided that it would not “reverse the polarity” or sanction taking any risks on the admission of expert testimony that has no business in a civil damage case involving

By Judge Judy Holzer Herscher

SacraMento Lawyer May/June 2013

lost profits. In so doing, it established a framework for counsel and the court to evaluate any challenged expert testimony on the basis of speculation, thus extending its importance beyond a lost profits case. The plaintiff, Sargon Enterprises Inc.4, is described as a small dental implant company that had net profits in 1998 of $101,000.00. It patented and obtained government approval for a new dental implant that could be implanted immediately after extraction of a tooth (“immediate load implant”), thereby saving several steps, time and money in the tooth replacement process. In 1996, Sargon entered into a contract with the University of Southern California School of Dentistry to conduct a five-year clinical study of the implant and then publish and distribute the report to dentists. After initial successful clinical trials, the university failed to produce the report. Sargon’s damage expert believed USC’s failure to meet its contractual obligations resulted in, among other things, lost profits of between $200 million and $1 billion for the company. The Sargon decision deals with the trial judge’s decisions in the second trial of the case. In the first trial, the trial judge excluded all evidence of Sargon’s alleged lost profits on the basis that USC could not have foreseen them. Sargon appealed and the appellate court reversed and ordered a new trial, finding that the trial judge had erred in excluding evidence of lost profits on the ground of lack of foreseeability.5 In the second trial, USC again moved to exclude the opinion testimony of plaintiff’s expert, certified public accountant and attorney James Skorheim, on the basis that any evidence of lost profits would be speculative. The specific evidentiary challenge was made under Civil Code § 3301 (“No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin.”) In trial number two, the judge conducted an eight-day in limine evidentiary hearing, and issued a 33-page decision denying admission of the testimony. The Court of Appeal reversed, and the matter made its way to the California Supreme Court. 82

Skorheim testified that he reviewed all litigation materials (including deposition transcripts and reports of USC’s damages experts), financial information from Sargon and its competitors (including annual reports), and market analyses of the global dental implant market prepared by Millennium Research Group. Skorheim based his opinion of lost profits on a “market share” approach of the worldwide dental implant market, which he described as hungry for technological change, growth and innovation aimed at shortening healing time, cost, and treatment. Specifically, Skorheim compared Sargon to six other large, multinational dental implant companies that were the market leaders and reportedly controlled in excess of 80 percent of global sales. His testimony was premised on his belief that there are three market “drivers” in the industry: innovation, clinical studies, and outreach to general practitioners. He testified that in order to be successful a company must engage in all three. He further opined that had USC completed the contract and distributed it to dental practitioners, Sargon would have garnered substantial future profits in the sale of its innovative dental implant system.6 He testified that Sargon would have garnered between 32 and 58 percent of the available dental implant market, which itself was expected to grow at over 18 percent a year. This would have meant profits of upwards of $1.18 billion for the company. The trial judge proceeded to deconstruct the basis of Skorheim’s opinion before discarding it in its entirety. Much of the trial testimony and the court’s decision centered on whether Sargon could properly be classified as “innovative” and whether that innovation would lead, or had a very good chance of leading (i.e., a reasonable certainty), to Sargon becoming the market leader over a 10 year period. The relevant portions of the innovation testimony were critical because it was on that basis that Skorheim further testified that: 1) Sargon would have been able to spend the necessary resources to develop other products over time; 2) Sargon’s prior profit levels were not a necessary component

is subject to objection if it does not. Simulations, on the other hand, of his consideration analysis; 3) Sargon contain as part ofand their creation scienwas enoughortophysical the established tific similar assumptions princiindustry leaders that their profits could be ples to separate and Sargon’ aparts anticipated from the used extrapolate admitted A computer, for profits; and evidence. 4) the total amount of damages under four may alternative damage scenarios example, be programmed to use--a based how innovative the jury found novelon orjust generally unaccepted scientifthe implant to be -- would appropriately set ic, mathematical other principle as the damage figure inorthe range he offered. part of its analysis, or it may adopt a (Sargon, at pgs.755-761.) The method Supreme of Court heldasthat novel proof parttheoftrial its court properly acted as a gatekeeper in assumptions. In simulations, experts excluding the testimony. Although sounding are relyingat on novel thereasonable firstthese blushbuilt -- i.e.,in“innovation” oriesanorappropriate assumptions to render their was touchstone to analyze future profitability -- thesimulations Supreme Court opinions. As a result, usuagreed with the trial judge that the testimony ally require a preliminary hearing and did not meet the tests of Civil Code, § a showing that certain any new or 7 3301 (reasonably lost scientific profits), and 8 or techother utilized assumption Evidence Code §§ 801, subd. (b) and 8029. “Assume Miss Oklahoma into nique has gained general entered acceptance aincontract to transport her to the Miss the relevant expert community. In America contest. Assume further that the short, breached simulations must be carrier the contract andtested Miss against themissed rules the for chance admission of new Oklahoma to compete. Ascientific jury could decide if she was damaged by or physical principles the breach, to the extent damages could be because they contain within them ascertained. Could the jury go further and, substantive evidence.of (Duenas, at pg. based upon testimony experts, decide 20-21 People v. Kelly that, had [citations]; she been allowed to compete, she would Miss 30; Colorado for (1976)have 17 defeated Cal.3d 24, see also the title of decide that People v. Miss Hood,America, supra,or(1997) 53 she would have been second, behind Miss Cal.App.4th pp. 969–970.) Colorado and atahead of Miss Montana” (Sargon, at p.764-765.) 10? Under Evidence Code section 801 subd. Avoiding “Mystic (b), a trial judge may Infallibility” consider whether the type of information the expert has relied on Animations —based everything is generally accepted in theon field as being from photos to videos and computer both reliable and relevant information. Under section 802, a the trial ability court may re-creations—have to also sigexamine whether thea information supports nificantly impact juror’s assessment the expert’s reasoning, or whether there is of the “too evidence. make and simply great an They analytical gapreal, between thus more to the senses, what the data and tangible the opinion offered.” (Sargon, at citations omitted] canp. be771an [additional un-engaging or confusing [also referencing Imwinkelried & Faigman, narrative by a witness. As in all cases Evidence Code Section 802: The Neglected Key where they are profferedLaw -- ofcivil or to Rationalizing the California Expert criminal -the opposing party often Testimony 2009) 42 Loyola L.A. L.Rev. 427, 441.].) objects to animations because of their The Supreme of potential to notCourt onlycompared highlighttwoand the three factors of success that Skorheim illustrateas in more memorable proffered theabasis of his conclusions,way, i.e., butpursuit because of theirstudies potential persuathe of clinical and targeting general practitioners, and noted that all of sive power. the 98 dental implant in the In Duenas the manufacturers defendant agreed field -- including those that had a small the computer wasactivities. an animarket share -- presentation engaged in these mation and not a simulation. Thus, the court concluded, the crux of the expert’ s testimony on whether would However, he argued thatSargon the animabecome the“likely industry andthe leap frog tion was to leader beguile jurors over the others was based only on how

into uncritically accepting the version of events depicted in the animation,” innovative was.have been excluded and thusSargon should Yet Skorheim’ s testimony failed to meet under Evidence Code section 352 any foundational standards on this important because value was subfactor and its he probative admitted he personally had stantially by how the probabilino expertiseoutweighed in determining innovative the dentalitsimplant was. First, did nota ty that admission wouldhe create correlate any relationship between historical substantial danger of misleading the revenues, market share, and innovation, thus jury. defense, on borrowing from making The any testimony the importance arguments generally made against simof innovation to profits highly speculative. The court found that his therefore ulations, asserted thattestimony the animation

tended to give the evidence “a posture of mystic infallibility in the eyes of a createdgave “a delusive impression of exactness in jury, the prosecution's case “an an area where aaura jury’sofcommon sense is less unwarranted scientific certainavailable than usual to protect it.” (Sargon, ty,” was cumulative of other eviat p.and 761-762.) dence. Duenas, p. 18, disNext, (See according to the at court, Skorheim essentially improperly called upon the cussing theand holdings of People v. Hood, jury to compare “degrees of innovation” and supra, 53 Cal.App.4th at p. 969, and to establish an “innovation pecking order” of People v. but Kelly, supra, 17theCal.3d atreal p. products, failed to give jury any 32, which found that with respect to standards by which they could make those important predicate processes decisions. And because certain scientific -- particu-

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

May/A/JPRIL une 2013 2013 SSACRAMENTO acraMentoLL awyer MARCH AWYER

Litigation “there are no standards or guidelines to determine ‘degrees of innovation,’” the court found the testimony relegated the question of determining potentially more than a billion dollars in damages to pure speculation.” Importantly, it found another basis for denying entry into the courtroom: speculative evidence is not only bad in and of itself, but it is not relevant. (Sargon, supra, 55 Cal. 4th at p. 763-765.) “A jury can determine if a Ford was defective, because there are objective facts, such as industry standards and standards for safety, as well as a body of case law on the subject of products liability. A jury cannot say if a Ford is a better car than a Chevrolet, because that is subjective and depends upon what the driver wants and what he can afford, among other things.” (Sargon, at p. 764.) The California Supreme Court defended the gates against Skorheim’s expert opinion, finding it, as indicated above, essentially irrelevant and speculative. According to the high court, Skorheim’s testimony would have had Sargon transitioning from a threeperson operation to an industry leader with only one product. The court also found the data which formed the basis of the expert’s opinions did not bear any relationship to plaintiff’s historical profits or the profits of any similar existing business. Instead, the opinion of up to a billion dollars in lost profits was based on projections that “are wildly beyond, by degrees of magnitude, anything Sargon had ever experienced in the past,” i.e., profits climbing by 534.4 percent the first year, and by over 157,000% within 10 years. (Sargon at p.762.) The admission or denial of expert testimony by a trial judge is reviewed at the appellate level for abuse of discretion. This means the trial court’s decision must appear to be so irrational or arbitrary that no reasonable person could agree with it. (Sargon, at p. 773.) The specific holding of Sargon is that damages for loss of anticipated profits in a new or unestablished business may be recovered only where the evidence: 1) supports that profits

were reasonably certain to have occurred, based on historical performance or by a comparison to profits of companies similar in size, locality, sales products, number of employees, etc.; 2) shows damages that can be measured by comparison to profits gained or lost by similar businesses operating under similar conditions; and 3) establishes a reasonable, rational basis for measurement or methodology that doesn’t require a jury to take a leap of logic or engage in conjecture. Perhaps the greater lesson, however, is that logic and common sense still play a vital role in the gatekeeper function of judges and the exclusion of seductive expert testimony. 1. Conversation between Members of the Ghostbusters Team “Speculating” on Reversing the Polarity Flow: Dr. Egon Spengler: I have a radical idea. The door swings both ways, we could reverse the polarity flow through the gate. Dr. Peter Venkman: How? Dr. Egon Spengler: [hesitates] We’ll cross the streams. Dr. Peter Venkman: ‘Scuse me Egon? You said crossing the streams was bad! Dr Ray Stantz: Cross the streams... Dr. Peter Venkman: You’re gonna endanger us, you’re gonna endanger our client - the nice lady, who paid us in advance... Dr. Egon Spengler: Not necessarily. There’s definitely a very slim chance we’ll survive. [pause while they consider this] Dr. Peter Venkman: [slaps Ray] I love this plan! I’m excited it could work! LET’S DO IT! 2. See U.S. Supreme Court decisions General Electric Co. v. Joiner (1997)522 U.S. 136, 142; Kumho Tire Co. v. Carmichael (1999)526 U.S. 137, 141. The California Supreme Court has more recently used the term “gatekeeping responsibility.” See e.g., People v. Prince (2007) 40 Cal. 4th 1179, 1225, fn. 8. 3. Herman Schwabe, Inc. v. United Shoe Machinery Corp. (2d Cir. 1962) 297 F.2d 906, 912. 4. While not directly relevant, this author notes that the Sargon in this case is not associated with Sargon of Akkad, whose history entails another epic to rival that of

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Gozer the Gozerian. Sargon was an emperor and he conquered the Sumerian city-states in the 23rd and 22nd centuries BC, killed the king, usurped his throne and then went on to conquer Mesopotamia. However, both the case and Ghostbusters had ties to Sumeria. 5. The Supreme Court footnote states: “We express no opinion on the correctness of this ruling, which is not before us on review.” 6. Skorheim testified,“[t]he value of a clinical study to an implant maker is two-fold: It establishes the efficacy of the device and permits entry into the universities where students can be taught to use the device, with the expectation that, upon graduation, they will use the product in their practices.” Thus, a showing of clinical success through the studies would, in all likelihood, lead to commercial success. (Sargon, supra, 55 Cal. 4th at p. 756.) 7. § 3301. Requirement of certainty: No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin. 8. § 801. Opinion testimony by expert witness: If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion. 9. § 802. Statement of basis of opinion: A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based. 10. See also additional scenarios on speculation at pgs. 780-781 (professional football team claims lost profits because a certain defensive lineman did not play for it and it lost the Super Bowl); (first time author sues for breach of a contract to publish a novel, and expert testifies it will become a national bestseller, win the Pulitzer prize and spawn a megahit movie).

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

Litigation

A View from the Civil Trial Bench: Reduction to Present Cash Value: Whose Burden Is It?

nce a plaintiff establishes a defendant’s liability at trial, he or she is entitled to an award of damages. The damages typically cover all losses through the date of verdict, and any additional losses reasonably certain to occur in the future. (Civ. Code §§ 3281, 3283) With limited exception,1 case law, as reflected in the Judicial Council of California Civil Jury Instructions (CACI), requires that any award of future economic2 damages be reduced to “present cash value.” Present cash value is the amount that, if reasonably invested today, will provide the plaintiff with the amount of his or her future damages. (CACI 3904A-Tort Damages and 359-Contract Damages) In 1972, the First Appellate District issued a decision finding that a late filed request by a civil defendant to have the court instruct the jury to reduce any future economic damages to “present cash value” was properly denied. A young man had lost his leg due to improper surgical procedures and his attorney sought damages to cover his impaired future earning capacity. No witness testified at the medical malpractice trial on the how to calculate a reduction of lost future economic earnings, and the parties had not submitted the relevant present cash value instruction to the court prior to the swearing of the first witness. The court articulated two grounds in denying the jury instruction. First, the instruction was late.3 Second, neither side had offered any expert testimony on “present cash value,” that is, the amount necessary to be awarded in the present which, with interest, would pay the plaintiff the equivalent of his future loss of earning capacity had he not been injured. The court held that

By Judge Judy Holzer Hersher

sAcrAmento lAwyer July /August 2013

the necessary calculations a jury would have to make to determine the present cash value was “not otherwise within the ‘common knowledge’ of the jury.” (Wilson v. A.E. Gilbert et al., (1972) 25 Cal.App.3d 607, 613 (“Wilson”).) It continued: “The computation of such “present cash value” is “difficult and confusing…[citations],” and absent appropriate evidence on the difficult topic, the jury “would have been put to sheer speculation in determining” the amount to award. Providing a jury instruction without benefit of any evidence of “advice as to the complicated factors of compounding and discounting” was asking too much of the jury. (Id. at p.614.) No Appellate Case is Directly on Point with Respect to Burdens of Proof Wilson, which is often quoted for the need to reduce future economic damages to present cash value, did not address the burden of proof issue. In other words, was it the defendant’s burden to prove the amount needed to be paid today to compensate plaintiff for his or her future lost income, or was it the plaintiff’s burden as part of his or her case in chief? This issue comes up repeatedly in modern day civil jury trials, but there are no California cases or statutes directly on point for allocating the burden. Some unpublished California cases have cited federal cases on point.4 The federal courts assign the plaintiff the burden of producing evidence on any anticipated inflation that may affect a future award, while a defendant is assigned the burden of producing evidence on the discount rate and the reduction of any future award to present cash value. If no one produces any evidence, the award is not adjusted. (See Alma v. Manufacturers Ha86

nover Trust Co. (9th Cir. 1982) 684 F.2d 622, 626.) So what happens in the typical statecourt case where no one puts on any evidence regarding the award of future economic damages by either inflation or investment returns? Is there any difference between a default case where the defendant has never appeared and one that goes to a bench or jury trial? What about reductions to present value by post-trial motion where a court is asked to enter judgment taking into account earlier good faith settlements? Default or Prove-Up Cases The law provides that when a defendant fails to file a responsive pleading, a plaintiff may request entry of default and default judgment under Code of Civ. Proc. §585,5 as liability is deemed admitted. A default judgment by the court clerk is available, for example, when damages are fixed or easily determined by the terms of a contract. However, if there is any uncertainty as to the amount or method of computing damages, the clerk cannot enter judgment and the plaintiff must seek a default judgment from the court after submission of admissible evidence. (Liberty Loan Corp. of North Park v. Petersen (1972) 24 Cal.App.2d 915, 919.) In those cases where future economic damages are an available remedy and sought by the plaintiff, such damages must have been pled in the complaint or the statement of damages, as the pleadings set the upper limit on damages that may be awarded. In default and proveup court trial cases, it appears that it is the plaintiff’s burden to address reductions to present value and that he or she is not relieved from putting on evidence of the present cash value of future awards. Fur-

thermore, failure by the court to insure the claimed future amount is reduced is reversible error. (See, e.g., Scognamillio v. Herrick (2003)106 Cal.App.4th 1139, 1150-1151.) Civil Jury Trials As of the time of this writing, CACI 3904A and CACI 359 prompt trial users to give the present cash value instruction “if future economic damages are sought.” (See “Directions for Use” included with each instruction.) The directions imply that the instructions need not be given if no evidence has been presented on the topic. They continue, however: “It would appear that because reduction to present value benefits the defendant, the defendant bears the burden of proof on the discount rate,” citing to Wilson. Thus, the federal view on the appropriate burdens is implicitly accepted, except, perhaps, where there is a California statute on point, such as in landlord tenant law or the Medical Injury Compensation Reform Act (MICRA).6,7 What we do know at this juncture is that a court can refuse to give any instruction about the effects of inflation or the need to reduce to present value if there has been no evidence on the topic and it can bar closing argument on the subject. (Wilson, supra, (1972) 25 Cal. App.3d at pg. 613; emphasis added.) At the same time, nothing prevents counsel from stipulating to the use of the CACI present value tables (CACI 3904B) and any related appropriate factors. (See, e.g., Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1651-1655 (stipulations regarding life expectancy, present cash value, and future pension benefits upheld).) Reduction to Present Value and Good Faith Settlements Franck v. Polaris E-Z Go Div. of Textron (1984) 157 Cal.App.3d 1107, a Third District Court of Appeal case, addressed the issue of how to handle the amount of reduction to present cash value, if any, to which a non-settling tortfeasor after verdict is entitled, where other defendants have entered into a

court approved structured settlement calling for future periodic payments under CCP §877(a)8. The appellate court faced the issue of whether the non-settling defendant should have the benefit of an offset against its’ judgment of the total amount of all future cash payments agreed to by the settling parties, or just the amount paid at settlement to fund future annuity payments. The court held that the trial court should use the present cash value of the settlements (i.e., the amounts used to fund the annuities) as an offset to the total judgment. Why? In conjunction with two other public policy arguments, “[O]nly by discounting the future payments to their present cash value and reducing the award by that amount will plaintiff receive the recovery to which she presently is entitled.” (Id, at pg. 1116-1117; italics in original.) Does “Ineffective Assistance of Counsel” Equate to Legal Malpractice in Civil Cases? Criminal cases don’t necessarily speak in terms of legal malpractice, i.e., falling below the standard of care expected of attorneys, and thus the basis for a civil suit seeking money damages against a former attorney. Rather, they talk in terms of “ineffective assistance of counsel.” In the recent case of People v. Pangan (2013) 213 Cal. App. 4th 574 (“Pangan”), a defendant was convicted of causing bodily injury while driving under the influence, a violation of Vehicle Code §23153. The criminal trial court imposed a restitution award in favor of the victim of $70,000. The amount was determined by multiplying the decrease in the victim’s pension payments caused by his forced retirement due to injury caused by the accident, calculated over the victim’s likely life span, without reduction to present cash value. The appellate court had this to say at page 574: “This is a driving under the influence with injury case…in which the trial judge’s conscientious and painstaking calculation of a restitution award failed to take into account the time value of money. When the court computed the value of the victim’s $246.50 per month in pen87

sion benefits, it multiplied that monthly benefit by a calculated likely lifespan and ordered a payment of $70,000. Defense counsel did not object, and defendant was hit with a restitution order that overstates the victim’s actual economic loss by thousands of dollars. We now hold: (1) It is an abuse of discretion not to account for the time value of money in determining a victim’s economic loss based on a diminished or lost stream of future payments. (2) The failure on defense counsel’s part to raise the issue of the time value of money in this case was ineffective assistance of counsel. (3) No satisfactory explanation is available to excuse counsel’s failure.” Since Pangan is a criminal case, and since criminal trial judges awarding restitution have discretion on how they calculate the amount (See, e.g., People v. Giordano (2007) 42 Cal. 4th 644, 665666), a comparison with civil appellate cases may not be appropriate. However, there are some important factors for the civil attorney to consider in light of Pangan. First, the decision affirms that any restitution order should not provide a victim with a windfall and must be discounted to reflect the fact the recipient is receiving the money now and that it must be clear from the record how the matter was handled. (Pangan, at pp. 581-582.) Next, in cases where there is some overlap between criminal restitution awards and subsequent civil awards, the reduction to present value may well be an issue. Finally, if it is ineffective assistance of counsel not to seek a reduction of a restitution award compensating for lost future damages to present cash value in a criminal trial, is it malpractice for a defense attorney not to do so in a civil trial? The answer to this last question may well be “yes,” depending upon the record in the case. Suggested Approach In light of the above, it would appear that at a minimum in a civil trial seeking future economic damages trial counsel should consider doing one or more of the following: July /August 2013 sAcrAmento lAwyer

Litigation (1) Use the trial brief to inform the court whether they intend to put on evidence related to the effects of inflation and/or reduction to present cash value with respect to future economic damages; (2) Submit appropriate jury instructions on the topic before the first witness is sworn if there will be witnesses on the topic; (3) Stipulate, when appropriate, to the various factors necessary to use the CACI jury present cash value reduction tables; (4) Advise the court of any stipulations regarding evidence related to this topic; (5) Advise the court that no evidence will be presented on the topic by any party and both parties agree that neither side will do so; (6) Be prepared to discuss the offset, if any, of prior settlements or court ordered restitution and their reduction to present cash value by way of post-verdict motion.

In this way, there will be an adequate record for appellate review, trial and appellate courts can determine whether there has been a knowing, intelligent and voluntary waiver of the reduction issue during the trial, and whether further orders are necessary by either court. 1 Awards utilizing periodic payments pursuant to Cal.Civ. Proc. Code §667.7 (MICRA) are handled differently. See, e.g., Salgado v. County of Los Angeles et al., (1998) 19 Cal. 4th 629. 2 Economic damages generally encompass items such as past and future medical expenses, medical monitoring costs, past and future lost earnings or profits, lost earning capacity, damages to real property or loss of its use, loss of ability to provide household services, damages to personal property or crops, etc. Non-economic damages typically include pain or mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, emotional distress, etc. 3 For an in depth article on the perils of filing a late request for a jury instruction, see this author’s article published in the May/June 2009 Sacramento Lawyer, “View from the Civil Trial Bench, Civil Jury Instructions (Part I): Untimely Submission by Trial Counsel—An Oversight with Significant Consequences,” pp. 12-13.

4 See, e.g., Barry v. Twentieth Century Fox Film Corp., 2011 Cal. App. Unpub. LEXIS 7132 (Cal. App. 2d Dist. Sept. 20, 2011). 5 Section 585 is too long to quote here but a close reading of the statute is encouraged. 6 See., e.g., Civil Code 1951.2(a)(1), which clearly places the burden on a lessee to prove establish any discount rates that may affect the worth of the award of future unpaid rent; see also Salgado v. County of L.A. (1998) 19 Cal., 4th 629 which addresses various statutes and special provisions associated with the Medical Injury Compensation Reform Act (MICRA). 7 The author cautions that family law cases have their own set of precedents in this area. See, e.g., In Re Marriage of Bergman (1985) 168 Cal.App.3d 742. 8 § 877. Effect of release, dismissal, or covenant not to sue or enforce judgment Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect: (a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it, whichever is the greater.

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

sAcrAmento lAwyer July /August 2013

MARCH/APRIL 2013 SACRAMENTO LAWYER

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

Litigation

A View from the Civil Trial Bench: The Internet and Misbehaving Jurors: What Price Justice?

By Judge Judy Holzer Hersher

hat is to be done about the juror who ignores a judge’s orders and admonitions against doing independent research or communicating about a case on personal blogs or social media sites? How are counsel and the courts going to ensure that trials are conducted fairly, with the promised test of evidence being done openly in the courtroom for all to see, hear, and consider together? Should the consequence to an offending juror be different if the actions affect a criminal trial or a civil trial? Should the juror spend time in jail, pay a fine or court costs? Who foots the attorney bill in those cases where a retrial is necessary to preserve fairness for the parties whose day in court was tainted by knowing or willful disobedience? What solace, if any, is there for the litigants who face retrials and the associated stresses and strains, in the remedies that are offered? Yes, the electronic digital age is fully upon us, and the courts, the ultimate open public forum for justice, are struggling with how to manage the challenges that the omnipresent internet-connected cell phone, tablet, and computer present in the modern day jury trial. Since 2000, there have been a combined 25 unreported and reported decisions examining problems associated with the prohibited use of the internet and technology by jurors during trial or deliberations. Many more instances are reported anecdo-

SACRAMENTO LAWYER SEPTEMBER/OCTOBER2013

tally by trial judges at conferences and meetings. The reported actions include jurors in civil and criminal cases researching online definitions of negligence, circumstantial evidence, reasonable doubt, great bodily injury, or probable cause;2 information about the parties involved in the case3 or information that was not presented during trial;4 personal blogs about the case;5 Facebook postings regarding parties or witnesses or comments by the juror or others;6 the background of attorneys associated with the case;7 texts during deliberations;8 research on weapons or guns;9 the toxicity of common household drugs like Tylenol or ibuprofen;10 mental disorders;11 judicial sentencing options;12 and viewing electronically the scene of an event and/or information on the plaintiff/victim.13 The ultimate issue addressed by all appellate courts is the same: should the trial court have disqualified the misbehaving juror, other jurors, or the entire panel? Should a new trial be ordered so that the parties will have had their day in court and a fair trial, be it civil or criminal? Courts are struggling with how to manage the challenges presented by the omnipresent internet-connected juror. In each of the cases--reported and unreported--the appellate courts reviewed the record and started from a presumption of prejudice to the liti90

gants if it was shown the juror had violated any court admonition. The subsequent appellate analyses focused not only on the action of the individual juror, but the impact, if any, on the other jurors, the quality and nature of the improperly received information or conduct, and whether the information or conduct was actually used by the offending juror or other jurors in reaching a verdict. The court’s perception of the juror’s credibility in responding to its questions was also critical, as well as the action of the presiding juror, if any, and whether he or she instructed the offending juror(s) not to discuss or bring the additional evidence for consideration into the jury room and whether he or she instructed the other jurors not to take that information or action into account. Ordering a new trial was reserved for only the most egregious violations or where the presumption of prejudice was not rebutted and removing the one or two offending jurors would not suffice.14 Two years ago the California legislature thought it was doing the right thing when it amended Penal Code section 166 and added a subsection (6) making it a misdemeanor to willfully disobey a court admonishment related to the prohibition of any form of communication or research about a case, “including all forms of electronic or wireless communication or research.”15 This, it was likely thought, would impress jurors with the seriousness of the admonitions given by the

court against improper electronic communications or research. Penal Code section 166(6) aptly appears in the section dealing with “Crimes against Public Justice.” The section shares space with other contemptuous court behavior, including violations of street gang injunctions, domestic violence restraining orders, and the unlawful possession of firearms. The same legislation also amended Code of Civil Procedure section1209 by adding a new subsection (a)(6) that makes these actions punishable by civil contempt. (“The following …are contempts of the authority of the court:…(a)(6) Willful disobedience by a juror of a court admonishment related to the prohibition of any form of communication or research about the case, including all forms of electronic or wireless communication or research.”) Less often mentioned, but nonetheless on the books, is another section of the Penal Code that makes it a felony to do virtually the same thing. Penal Code section 66 states, in part, that anyone who “willfully and corruptly permits any communication to be made to him, or receives any book, paper, instrument, or information relating to any cause or matter pending before him, except according to the regular course of proceedings, is punishable by fine not exceeding ten thousand dollars ($10,000),” or by imprisonment up to three years. (See also Code Civ. Proc. §1209(a)(11) (“…improperly conversing with a party to an action to be tried at the court, or with, any other person, in relation to the merits of the action, or receiving a communication from a party or other person in respect to the action, without immediately disclosing the communication to the court” is punishable by contempt). Also in 2011, the California Legislature directed the courts to draft and adopt jury instructions advising jurors of the prohibitions and their potential ramifications. The Advisory

Committees for the California Civil Jury Instructions (CACI) and Criminal Jury Instructions (CALCRIM) each, respectively, have added instructions on point. Effective June 2011, CACI added introductory Instruction 116 to explain to jurors at the beginning of the trial why they should follow the admonitions. (“The evidence that is presented in court can be tested; it can be shown

to be right or wrong by either side; it can be questioned; and it can be contradicted by other evidence. What you might read or hear on your own could easily be wrong, out of date, or inapplicable to this case…a trial is a public process…Using information gathered in secret by one or more jurors undermines the public process and violates the rights of the parties.”) Introductory Instruction 116 was designed to com-

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

SPETEMBER/OCTOBER 2013 SACRAMENTO LAWYER

plement and explain the admonition in CACI 100 that that if civil jurors violate any of the prohibitions on communications or research they can be held in contempt of court, face sanctions, serve time in jail, pay a fine, or face other punishments. The same is repeated in CACI 5000 (Duties of the Judge and Jury), typically given at the close of evidence. (“These prohibitions on communications and research extend to all forms of electronic communications…”) Similar language is found in CALCRIM Instruction 101 (Cautionary Admonitions: Jury Conduct)(“I want to emphasize that you may not use any form of communication, including electronic or wireless research or communication, to research, share, communicate, or allow someone else to communicate with you regarding any subject of the trial. [If you violate this rule, you may be subject to jail time, a fine, or other punishment]); and in CALCRIM Instruction124 (Separation Admonition)(“Remember do not talk about the case or about any of the people of any subject involved in it with anyone, including the other jurors. Do not do research, share information, or talk to each other to anyone else about the facts of the case or anything else connected with the trial, and do not use any form of electronic or wireless communication to any of those things, either.”) The Jury is Out on the Fix. Have the instructions or statutes mitigated the problem going forward evidenced in the two dozen cases currently available for review? Only time will tell. The problem is as much human as legal. Are jurors not understanding the important constitutional issues at stake? Are the court and counsel not being effective in explaining the ramifications of the conduct to the jury? Or is human nature such that there will always be the temptation to ignore the limits, and will there

SACRAMENTO LAWYER SEPTEMBER/OCTOBER2013

always be persons who will succumb to them? And finally, are these current issues no more or less than a factual twist on the brand of juror problems that courts historically have had to deal with under an appropriate trial review procedure already in effect? The new criminal language has heightened concern for the courts and the litigants. Any allegation of improper conduct by a juror during trial triggers a duty on the part of the court to investigate. The possibility of criminal prosecution adds a greater level of complexity. Since use of electronic communications during trial is punishable as a misdemeanor, felony, and/or by contempt, Miranda warnings16 and/or appointment of counsel for the alleged offending juror may well be in order.17 Once that happens, a court may not be able to adequately question the juror to determine if, in fact, the trial has been undermined in some improper fashion, as the juror may invoke his or her constitutional privileges against self-incrimination. Granting or denying immunity to the juror may help the court investigate the problem, but it doesn’t serve the deterrent effect hoped for the statutes. The Criminal Law Advisory Committee to the Judicial Council is currently considering a recommendation to delete subsection (6) from Penal Code section 166 by legislation effective January 1, 2015 and a possible revision of Penal Code section 96. According to the Criminal Law Advisory Committee, although civil contempt proceedings raise similar constitutional implications to criminal proceedings, “the authority to initiate civil contempt proceedings lies exclusively with the court. Thus, if the court believes that questioning the juror is necessary to preserve the integrity of a pending trial, the court could first offer the juror immunity from civil contempt sanctions in exchange for a formal inquiry on the record. This process would ensure that the conduct of the trial, including 92

any inquiry of a juror into the use of electronic communications during the trial, remains squarely within the province of the court.” (See Invitation to Comment, LEG 13-02, Proposed Legislation: Criminal Procedure: Misdemeanor Contempt by Jurors, issued by the Judicial Council of California, Administrative Office of the Courts (www.courts.ca.gov/policyadmin-invitationstocomment.htm), action requested by June 19, 2013.) While eliminating criminal sanctions may avoid obstacles to court investigation into juror misconduct that threaten the integrity of a trial process, it fails to proactively address the results of the increasing problem faced by trial courts. At present, there is no statutory mechanism for reimbursing the parties or the court for time associated with dealing with a violation of any of the Penal Code sections or general admonitions. If the court or parties proceed against the juror on the basis of civil contempt, in addition to the $1,000 fine and/or up to five (5) days in the county jail for each offense, the court can order the offending juror to pay the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by the party “in connection with the contempt proceeding.” (Code Civ. Proc. §1218(a), emphasis added.) This, however, does not address the costs and attorney fees associated with having to redo a trial. To the extent that any potential sanction works as a deterrent, perhaps one approach would be the creation of a civil statute that would make a juror liable for all court costs and attorney fees and costs proximately caused by their actions. Such a civil action could be brought by county counsel, or individual litigants adversely affected, without imposition of a contempt sanction or order. Perhaps the potential for substantial out-of-pocket juror damages would serve as a greater deterrent than criminal or contempt sanctions, particularly if the later choices create more prob-

lems than they solve. Or, perhaps, this is another cost inherent in a system of justice and one we just have to live with. 1. The author wishes to acknowledge the research contributions of U.C. Davis School of Law School student Pedro Avilia to this article. 2. People v. Hamlin (2009) 170 Cal.App.4th 1412; Real v. WAL-MART Stores, 2002 Cal.App.Unpub. LEXIS 4692 (Cal.App. 2d Dist. Jan. 22, 2002); People v. Dale, 2004 Cal.App.Unpub. LEXIS 5546 (Cal.App. 4th Dist. June 9, 2004); People v. Mendoza, 2001 Cal.App.Unpub. LEXIS 802 (Cal.App. 5th Dist. Dec. 12, 2001); People v. Bryant (2011) 191 Cal.App.4th 1457. 3. People v. Lemus, 2010 Cal.App.Unpub. LEXIS 6323 (Cal.App. 2d Dist. Aug. 10, 2010). 4. Potts v. Radioshack Corp., 2006 Cal.App.Unpub. LEXIS 6504 (Cal.App. 4th Dist. July 26, 2006); People v. BerryVierwinden, 2012 Cal.App.Unpub. LEXIS 8584 (Cal.App. 4th Dist. Nov. 27, 2012); People v. Dancel, 2005 Cal.App.Unpub. LEXIS 5553 (Cal.App. 1st Dist. June 28, 2005); People v. Catalan, 2007 Cal.App.Unpub. LEXIS 628 (Cal.App. 2d Dist. Jan. 26, 2007). 5. People v. Donald Richard McNeely, 2007 Cal.App. Unpub. LEXIS 4752 (Cal.App. 4th Dist. June 14, 2007). 6. Juror Number One v. Superior Court (2012) 206 Cal.App.4th 854; People v. Lugo, 2013 Cal.App.Unpub. LEXIS 4734 (Cal.App. 4th Dist. July 1, 2013); People v. Lozano, 2011 Cal.App.Unpub. LEXIS 9556 (Cal.App. 4th Dist. Dec. 14, 2011). 7. Zhao v. Mazda Motor of Am., 2013 Cal.App.Unpub. LEXIS 444 (Cal.App. 1st Dist. Jan. 18, 2013); Ramos v. Shearer, 2008 Cal.App.Unpub. LEXIS 4960 (Cal.App. 4th Dist. June 18, 2008); People v. Chester William Owen, 2007 Cal.App.Unpub. LEXIS 4422 (Cal.App. 4th Dist. May 31, 2007). 8. People v. Foreman, 2010 Cal.App.Unpub. LEXIS 7521 (Cal.App. 4th Dist. Sept. 23, 2010). 9. People v. Dale, 2004 Cal.App.Unpub. LEXIS 5546 (Cal.App. 4th Dist. June 9, 2004); People v. Zeff Gotti Rocco, 2007

Cal.App.Unpub. LEXIS 4550 (Cal.App. 2d Dist. June 6, 2007). 10. People v. Smith, 2009 Cal.App.Unpub. LEXIS 4925 (Cal.App. 3d Dist. May 22, 2009). 11. People v. Williams, 2006 Cal.App.Unpub. LEXIS 7220 (Cal.App. 6th Dist. Aug. 17, 2006). 12. People v. Lister, 2006 Cal.App.Unpub. LEXIS 11693 (Cal.App. 4th Dist. Dec. 29, 2006); People v. Santos, 2010 Cal.App.Unpub. LEXIS 5555 (Cal.App. 2d Dist. July 15, 2010). 13. People v. White, 2013 Cal.App.Unpub. LEXIS 2541 (Cal.App. 4th Dist. Apr. 10, 2013). 14. Potts v. Radioshack Corp., 2006 Cal.App.Unpub. LEXIS 6504 (Cal.App. 4th Dist. July 26, 2006); Zhao v. Mazda Motor of Am., 2013 Cal.App.Unpub. LEXIS 444 (Cal.App. 1st Dist. Jan. 18, 2013); People v. Pizarro (2013) 216 Cal.App.4th 658 . 15. §166. Criminal contempts. “Except as provided in subdivisions (b), (c), and (d), a person guilty of any of the following con-

tempts of court is guilty of a misdemeanor: …” Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research. 16. Miranda v. Arizona (1986) 384 U.S. 436 and its progeny established the now wellknown advisements law enforcement must give at certain junctures to persons under investigation and/or those being charged with a crime. 17. U.S. Const. 6th Amend.; Cal. Const. art. I, §15. See also Pen. Code §§686, 859, 987; Gideon v. Wainwright (1963) 372 U.S. 335; Mempa v. Rhay (1967) 389 U.S. 128, 134; Miranda v. Arizona, supra, 384 U.S. 436. The rights of an alleged contemnor charged with indirect contempt are the same as those of a criminal defendant, with limited exception. See, e.g., Code Civ. Proc. §1217; Gov. Code §27706(a); In re Witherspoon (1984) 162 Cal.App.3d 1000.

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2008-2015

SPETEMBER/OCTOBER 2013 SACRAMENTO LAWYER

Litigation

A View from the Civil Trial Bench Howell v. Hamilton Meats & Provisions, Inc., and Corenbaum v. Lampkin: Examining the Policies behind the Decisions and their Future Impact By Judge Judy Holzer Hersher

wo years ago the California Supreme Court held that an injured party whose medical expenses are paid by private insurance can only recover damages for past medical expenses equal to no more than the actual amount that the plaintiff’s medical providers, pursuant to the specifics of an agreement, accept as full payment for services rendered, i.e., the “negotiated rate differential.” (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 566 (“Howell”).) The case effectively ended any evidentiary battle at the trial court level as to whether the amounts billed but never paid should be allowed as past medical damages.1 After Howell, there was a flurry of articles and panel discussions about whether the full amount billed was nonetheless admissible for other purposes, such as the amount of possible future medical expenses, or as a touchstone for the award of non-economic damages for emotional pain and suffering. The Howell court explicitly left these issues open for future consideration. (Howell, supra, 52 Cal.4th at p. 567.) “Relevancy,” “Reason,” and “Harmony” This past April, the Second Appellate District seems to have put an end to the speculation. It held in Corenbaum v. Lampkin (2013) 215 Cal. App.4th 1308 (“Corenbaum”) that the full amount of an injured plaintiff’s medical billings, as opposed to the amounts actually paid, was irrelevant and therefore inadmissible to prove the Sacramento Lawyer November / D ecember 2013

plaintiff’s anticipated future medical expenses, either directly or as the basis of expert testimony. The full amount of the bills was also irrelevant and therefore inadmissible to support an award of non-economic damages, past or future. The decision has already been used to defeat a request for a hospital lien in another recent appellate decision, State Farm Mutual Automobile Ins. Co. v. Huff (2013) 216 Cal.App.4th 1463, 1471. Read carefully, Corenbaum does not firmly close the door on all arguments regarding the admissibility of the amounts billed by medical providers. “Because plaintiffs have not shown that evidence of the full amounts of their medical bills was relevant to any other issue, the admission of such evidence was [is] error.” (Corenbaum, supra, 215 Cal.App.4th at p. 1319.) The law provides for an award of medical expenses that are both incurred and reasonable. It is limited to the lesser of the amount paid or incurred and the reasonable value of those services. (Howell, supra, 52 Cal.4th at p. 556.) According to the California Supreme Court, the reasonableness of the charges incurred is “a term of limitation” and not of “aggrandizement” on the amounts sought. (Id. at p. 553, cited in Corenbaum, supra, 215 Cal.App.4th at p. 1326.) It is within this framework that the appellate courts have looked, and the author submits will continue to look, at the admissibility of medical billings. Both Howell and Corenbaum examine the significant and often confusing differ94

ences between amounts charged by medical providers for the same services under different contracts of insurance, and as between insured and uninsured persons. The state of the market for health insurance coverage, and the confusing array of charges and actual payments, led the Howell court to conclude that “a medical care provider’s billed price for particular services is not necessarily representative of either the cost of providing those services or their market value.” (Howell, supra, 52 Cal.4th at p. 564.) Corenbaum picks up where Howell left off, at least with respect to future medical billings and non-economic damages where the bills have been subject to a negotiated rate differential. As in Howell, the Corenbaum court examines the nature of allowable future damages in cases. It starts with the rule that injured persons are entitled to recover the reasonable value of medical services that are reasonably certain to be necessary in the future. (Civ. Code §§3283 [damages may be awarded for “detriment…certain to result in the future”] and 3359 [future damages must be proven with “reasonable certainty”]; Caminetti v. Pacific Mut. Life. Ins. Co. (1943) 23 Cal.2d 94, 103.) It then extends the Howell reasoning, holding that since the full amount billed in the past is not an accurate measure of the value of medical services provided, and because there remain significant disparities between the amounts charged by providers and the actual cost of providing the services, and also because the limitation of reasonable value applies to future as well as past medical expenses, the unreduced past billings cannot form the basis of any

Litigation reasonable value of future medical costs or damages. (Corenbaum, supra, 215 Cal. App.4th at pp. 1330-1331.) Nor can these unreduced billings support an expert opinion on the reasonable value of future medical services, in part because the amounts are not reliable. Instead, they fall into the category of evidence that is based on speculation or conjecture, which is not admissible and cannot appropriately influence expert opinion. (Id. at p. 1331, citing to Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770;2 Evid. Code § 801(b) [an opinion must be based on matter of a type that may be reasonably relied upon by an expert in forming an opinion]; and Evid. Code § 802 [allowing trial courts to exclude opinions based on unsupported materials and reasons].) “We conclude that evidence of the full amount billed is not admissible for the purpose of providing …an argumentative construct to assist a jury in its difficult task of determining the amount of noneconomic damages and is inadmissible for the purpose of providing noneconomic damages.” (Corenbaum, supra, 215 Cal.App.4th at p. 1333.) Recognizing that attorneys often refer to the amount of economic damages as a “point of reference” in their closing argument with respect to damages for pain and suffering, mental anguish and emotional distress, the Corenbaum court further concludes that for the very same reasons the billings are irrelevant and inadmissible for purposes of establishing reasonably incurred past and future medical expenses, they cannot justify noneconomic damage awards, past or future. This is true even though noneconomic awards are “subjective” and committed to the discretion of the jury. (Corenbaum, supra, 215 Cal.App.4th at p. 1332.) Why? Jurors are required in making an award “to act reasonably, intelligently and in harmony with the evidence.” (Id. at p. 1332, fn.15, citing Capelouto v. Kai-

ser Foundation Hospitals (1972) 7 Cal.3d 889, 893.) Since the unreduced billings are discordant with the actual evidence of incurred past medical expenses, there is no reasonable or rationale basis to even consider them in making subjective decisions, and there is always the danger of confusing the jury. So that a jury can act reasonably and intelligently and in harmony with the evidence, the Corenbaum court held that no evidence of the pre-rate negotiated differential should be admitted. “… ‘Translating pain and anguish into dollars can, at best, be only an arbitrary allowance, and not a process of measurement, and consequently the judge can, in his instructions, give the jury no standard to go by; he can only tell them to allow such amount as in their discretion they may consider reasonable. …The chief reliance for reaching reasonable results in attempting to value suffering in terms of money must be the restraint and common sense of the jury. … ’[Citation]” (Corenbaum, supra, 215 Cal App.4th at p. 1333.) So, is there anything left to talk about at the trial level when it comes to medical billings subject to a negotiated rate differential? Is there no other reasonable and appropriate basis for ad-

missibility? Perhaps. As Acting Presiding Justice H. Walter Croskey advised in the decision’s opening paragraphs, the holding is limited to the facts of the case, wherein the appealing party did not show that the evidence of the full amount of their medical bills was relevant to any other issue in the case. (Corenbaum, supra, 215 Cal.App.4th at p. 1319.) The appellate court also expressly states it is not reaching certain issues. (Corenbaum, supra, 215 Cal. App.4th at p. 1329, fn. 12.) Should it be shown that there are other reasonable and relevant reasons to allow the introduction of the billings, the door remains open, more likely than not with an appropriate limiting instruction, to their introduction. The devil is in the details and whether there is a harmonious basis for admission . 1. The Supreme Court let stand Katiuzhinsky v. Perry (2007) 152 Cal. App.4th 1288, 1295-1296, which did allow in evidence of the full amount billed, because the plaintiffs in that case did not have insurance and therefore remained liable to their medical providers for the full amounts billed. 2. See this author’s discussion of the Sargon decision in the May/June 2013 issue of the Sacramento Lawyer, pp. 8-10, entitled “‘Gatekeepers’ A Dramatic Analogy between Expert Testimony and the Movie Ghostbusters.”

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

November / December 2013 Sacramento Lawyer

Litigation

Setting the Number of Peremptory Challenges in the Simple and Complex Civil Jury Trial: Part Statute, Trial Strategy, and Discretion

By Judge Judy Holzer Hersher

he trial judge and attorneys in a civil trial have concluded voir dire and all sides have advised the Court that there are no grounds based on competency, implied bias, or prejudice to remove any of the potential 12 jurors seated in the box. 1,2 Next up is the right of counsel to exercise any of their assigned peremptory challenges if they believe that any of the jurors are not right for their case. The relevant statute is Code of Civil Procedure section 231. The order for exercising peremptory challenges is plaintiff(s) first, followed by defendant(s). In two-party cases, the number of challenges per party is set at six (6). In circumstances other than the simple two-party case, I am often asked how many peremptory challenges a party is entitled to and how the number is calculated under section 231.3,4 The number of peremptory challenges available to parties in civil jury trials in California has remained the same since 1988. If there is more than one plaintiff or defendant, the court is directed to “divide” the parties into two or more “sides,” according to their respective interests in the issues. The decision as to which parties constitute a “side” is therefore important and ultimately dictates the number of challenges available to each party. Who or what constitutes a “side”? There are no appellate cases that define the term, thus the commonly understood meaning of “opposing groups” or legal positions applies.

This is and can be, importantly, different than the number of “parties” who have appeared in the action or who are involved in the trial. Put another way, the presence of multiple plaintiffs or multiple defendants does not always result in more than two “sides.” Since the civil trial judge is tasked with determining which parties, if any, are on the same “side,” the trial judge has to have a solid grasp of the procedural and legal positions of each of the parties, their apparent trial strategy, and what the jury will be asked to resolve. This requires the court to examine the state of the pleadings at the time of trial and the final alignment of the parties on the day of jury selection. In some instances, the presence of multiple parties will not increase the number of sides. One example would be where several plaintiffs sue a manufacturer for injuries arising from a product. The presence of multiple plaintiffs does not change the fact that there are really only two sides, even though each plaintiff has different damages, if all are jointly alleging identical design defects. However, if the plaintiffs have sued both the manufacturer and a component parts maker, or the distributer, or anyone else in the chain of production or sale, and if one or more of the defendants are arguing that liability really lies with the other(s) as the bad actor(s), then the number of sides may in fact be greater than two. If all the defendants are defending upon a common defense, and alleging that the plaintiff suffered injury due to his or her own actions or

Sacramento Lawyer January/ February 2014

not at all, once again there might only be two sides. In another example, an employment case, if a plaintiff sues both her employer and supervisor, then based on certain theories of employment discrimination, the supervisor may find himself personally liable for an adverse judgment. Thus in many employment cases, for example, unless the employer has agreed to both defend and indemnify the supervisor, there are usually at least three sides—the plaintiff, the employer, and the supervisor. This is true even where both defendants share a common defense strategy. Yet another typical example includes a construction defect case where several plaintiffs sue the general contractor, who then cross-complains against the design professionals (architect and engineer), as well as some or all of the subcontractors. Sometimes, the plaintiffs name these additional parties as well, and other times they choose just to name the general contractor. Deciding the actual number of “sides” in a construction defect case takes some sorting out of the legal and factual disputes at the time of trial. It is the substance of the theor(ies) of liability on the eve of trial that is the focus of the relevant inquiry for the trial judge in deciding the true number of “sides.” Among the factors a judge considers are: (1) who are the parties and how, if at all, are they related; (2) are there theories of alter ego or respondeat superior that may affect the outcome; (3) are there contractual obligations,

Litigation indemnity, etc., that are triggered; (4) what are the causes of action and affirmative defenses stated by each party; (5) what kinds of damages are sought and are they awarded against all defendants as joint and several or individual; (6) what is the nature of the cross-action(s) and does it/they raise a novel theory of liability or defense; (7) do any of the parties share positions on key issues in the case or alignments in trial strategy; (8) have the parties jointly hired experts and/or agreed to examine all witnesses jointly; (9) are punitive damages available as to some but not all of the defendants; (10) is it probable that one or more of the parties will be successful on a motion for non-suit or directed verdict; and (11) finally, what are the factual issues, if any, that may separate the parties in the minds and decision-making of the jury. This list is illustrative only and by no means exhaustive. When there are more than two sides, the “default” number of assigned peremptory challenges “per side” is set by statute at eight, to be divided “as nearly equally as possible” amongst the parties on each side. (Code Civ. Proc., § 231, subd. (c).) The court is empowered to tell each side how to divide the eight challenges among the multiple party members. Alternatively, the parties on a side can agree amongst themselves how they will divvy up the challenges and have the court confirm it. Sometimes, however, the interests of justice require that more than eight challenges be assigned per side because of the diverse interests or complexities of the case, or because of the total number of parties actually on a “side.” In this instance, Code of Civil Procedeure section 231 permits the trial judge to set additional challenges above the number eight. The judge is free to direct who gets to use the additional challenges “as the interest of justice requires.” (Code Civ. Proc., § 231, subd. (c).) However, the total number of peremptory challenges on one side cannot exceed the aggregate number of peremptory challenges of all other sides.

Finally, there is one peremptory challenge per “side” in a civil case for each sworn alternate. (Code Civ. Proc., § 234.) 1. Code of Civil Procedure §222.5 discusses the parameters of the initial examination of prospective jurors in civil jury trials. 2. Challenges for cause are dealt with before the jury is sworn and are described in Code of Civil Procedure §§ 228, 229, and 230. The timing for peremptory challenges and the order they are made by the parties is governed by §226, which provides that a challenge to an individual juror may only be made before the jury is sworn and after all challenges for cause are exercised; it can be taken orally or may be made in writing; no reason need be given for a peremptory challenge; and the court must exclude the juror unless exclusion it is used for an impermissible purpose, i.e., discrimination. This article does not cover those circumstances. All challenges to an individual juror, except a peremptory challenge, shall be taken, first by the defendants, and then by the people or plaintiffs. 3. § 231. Peremptory challenges (Civil)

“(c) In civil cases, each party shall be entitled to six peremptory challenges. If there are more than two parties, the court shall, for the purpose of allotting peremptory challenges, divide the parties into two or more sides according to their respective interests in the issues. Each side shall be entitled to eight peremptory challenges. If there are several parties on a side, the court shall divide the challenges among them as nearly equally as possible. If there are more than two sides, the court shall grant such additional peremptory challenges to a side as the interests of justice may require; provided that the peremptory challenges of one side shall not exceed the aggregate number of peremptory challenges of all other sides. If any party on a side does not use his or her full share of peremptory challenges, the unused challenges may be used by the other party or parties on the same side.” 4. This article does not compare the rules for criminal and civil juries, but simply cautions that those who try criminal cases should not assume the rules are the same for civil jury trials. The differences are noted in the statute.

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January/ February 2014 Sacramento Lawyer

Litigation

Poet Robert Frost and the California Legislature Agree: Good Fences Make Good Neighbors. By Judge Judy Holzer Hersher

ver the past 150 years California judges have been called upon to resolve conflicts over whether a fence should be constructed or torn down between adjacent properties, the materials that could be used, and who would pay for and maintain it. Court law and lore are replete with stories of fisticuffs and malicious mischief when neighbors didn’t see eye to eye on the need or style for a fence, its location or their respective responsibilities in maintaining it.

“Before I built a wall I’d ask to know What I was walling in or walling out, And to whom I was like to give offense.” The new section 871, aptly called the Good Neighbor Fence Act of 2013, provides, among other things, that there is a rebuttable presumption that adjoining landowners gain an equal benefit from the shared fence that divides their properties and, therefore, each should bear equal responsibility for the cost of the improvement and maintenance.3 It adds a requirement that a party inform his or her neighbor in writing of any intended plans regarding a fence, and further that they both confirm their agreement regarding the cost of the fencing, fencing specifications, aesthetics and installation in writing. Unless the parties expressly agree otherwise in this writing, the new statute requires that they share equally the cost of constructing and maintaining the fence. The initial written communication must occur at least 30 days before construction begins. Importantly, the new law squarely places the responsibility on the neighbor trying to get out of his or her cost and maintenance burden to show by a preponderance of the evidence that imposing equally the reasonable costs of construction, maintenance, or necessary replacement of the fence would be unjust. The statute also lists factors that the parties and the court should consider in deviating from equal responsibility. These include any disproportionate financial burden on a neighbor, the respective values of their properties, any unique financial circumstances, the reasonable or unreasonable nature of the project, and even the aesthetics.

“Something there is that doesn’t love a wall…” Effective January 1, 2014, the statute that has governed these neighbor fence and boundary disputes, Civil Code section 841, has been extensively revised. Before revision, Civil Code section 841 really did little to guide the parties or the courts in resolving disputes. It simply stated that neighbors are mutually and equally bound to “maintain” the fences between them. However, the only express circumstance under which a refusing neighbor was bound to pay his or her “just portion” of maintaining the fence was when he or she later completed the enclosure of his or her land using a part of the previously built fence.1 The longstanding language did little to address initial construction issues or the type of fencing, its height, etc., that may be used. The legislative history accompanying the recent statutory change thus recognized that the century and a half old statute provided little guidance in light of the many issues attendant to construction growth in both urban and suburban areas, as well as issues surrounding the commercial aspects of fencing. (See, e.g., the June 24, 2013 Assem. Floor Analysis of A.B. 1404; the June 14, 2013 Sen. Floor Analysis of A.B. 1404; and the June 10, 2013 Sen. Judiciary Com. Report on A.B. 1404, among other available legislative bill documents.) With its recent enactment, California appears to have adopted the wisdom and insight of the late American poet Robert Frost as articulated in his 1914 poem “Mending Wall.”2 In the poem, Frost recognizes that when dealing with boundary issues, neighbors may not see eye to eye on the need for or type of fencing, and that there are often more things at play than the fence itself.

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“I let my neighbor know beyond the hill; And on a day we meet to walk the line And set the wall between us once again.” “Mending Wall” is about a rock wall that every spring needed to be rebuilt after the harsh New England winter frosts and snows caused it to tumble and break in places. The wall, according to the author, wasn’t particularly useful. Its only job appeared to be to separate the properties of the 98

Litigation two neighbors, and a pine forest on one side from an apple orchard on the other. There were no animals to keep in or out or children who tended to stray. And yet, each year the

narrator and his neighbor, two very different people from what we learn about them, would jointly repair the wall. There are parallels between what Frost meant to convey in his poem, and the wisdom of the changes to section 871. The poem’s narrator lets us know that one neighbor clearly thinks the wall is important, and the other does not. We sense from both the language and the style of presentation that each participant approaches life differently, and perhaps has different values than the other. And yet, both work together despite reticence on the part of one who sees little benefit in his efforts (or expenditures) in the project. Mending Wall doesn’t just tell a story, i.e., two men walking the length of a rock wall and reconstructing it. It explores the fabric and maintenance of relationships between neighbors. As they work together to repair the wall, so too they work together to maintain the peace between themselves, and ultimately the wider community. The signature refrain in the poem, “Good fences make good neighbors,” is reflected in the title of the recent legislation, The Good Neighbor Fence Act.

“Mending Wall” by Robert Frost Something there is that doesn’t love a wall, That sends the frozen-ground-swell under it And spills the upper boulders in the sun; And makes gaps even two can pass abreast. The work of hunters is another thing: I have come after them and made repair Where they have left not one stone on a stone, But they would have the rabbit out of hiding, To please the yelping dogs. The gaps I mean, No one has seen them made or heard them made, But at spring mending-time we find them there. I let my neighbor know beyond the hill; And on a day we meet to walk the line And set the wall between us once again. We keep the wall between us as we go. To each the boulders that have fallen to each. And some are loaves and some so nearly balls We have to use a spell to make them balance: “Stay where you are until our backs are turned!” We wear our fingers rough with handling them. Oh, just another kind of outdoor game, One on a side. It comes to little more: There where it is we do not need the wall: He is all pine and I am apple orchard. My apple trees will never get across And eat the cones under his pines, I tell him. He only says, “Good fences make good neighbors.” Spring is the mischief in me, and I wonder If I could put a notion in his head: “Why do they make good neighbors? Isn’t it Where there are cows? But here there are no cows. Before I built a wall I’d ask to know What I was walling in or walling out, And to whom I was like to give offense. Something there is that doesn’t love a wall, “That wants it down.” I could say “Elves” to him, But it’s not elves exactly, and I’d rather He said it for himself. I see him there, Bringing a stone grasped firmly by the top In each hand, like an old-stone savage armed. He moves in darkness as it seems to me, Not of woods only and the shade of trees. He will not go behind his father’s saying, And he likes having thought of it so well He says again, “Good fences make good neighbors.”

“He only says, ‘Good fences make good neighbors.’” Similarly, the new section 841 expressly recognizes the importance of an articulated and shared responsibility in constructing and maintaining boundaries. It does so by establishing a presumption in favor of building and repairing as a joint and co-equal venture, and requires its memorialization in writing. Thus, there is expressed within the content of the poem and in the statute the same public policy; that is, fences, those that are designed, constructed and maintained as a joint project, discussed and agreed upon in advance, make for better or good neighborly relationships. This, in turn, or so the statute impliedly recognizes, should lead to less conflict in the community and the courts. The requirement of a written agreement before fence construction or modification and the enumerated list of equity factors to consider in any cost sharing, also may reduce the need for litigation under Civil Code section 841.4, often referred to as the “Spite Fences” section.4 In typical cases brought under this section, commercial businesses as well as individual homeowners often seek to enjoin fencing as a nuisance. (See, e.g., Hutcherson v. Alexander (1968) 264 Cal.App.2d 126 [court considers the claim of adjacent drive-in businesses as to whether the height of the fence blocks access and view to the public of the other].) The new statute may or may not, however, affect litigation that arises when one neighbor plants a row of trees that may be akin to a fence under the law, and which subsequently blocks or interferes with a 99

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Litigation neighbor’s enjoyment of views or other property rights. (See, e.g., Wilson v. Handley (2002) 97 Cal.App.4th 1301 [a row of trees planted along a property line can constitute a private nuisance under the spite fence statute, even if the trees interfere only with light and air]); see also Vanderpol v. Starr (2011) 194 Cal.App.4th 385 [regarding the necessary court and jury findings]. ) Attorneys handling fence or boundary cases will need to proceed with caution in citing to any case law prior to January 1, 2014, to ensure that it comports with the new statute and the policy underlying it.

for getting the problem addressed. “(3) The presumption in paragraph (1) may be overcome by a preponderance of the evidence demonstrating that imposing equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence would be unjust. In determining whether equal responsibility for the reasonable costs would be unjust, the court shall consider all of the following: “(A) Whether the financial burden to one landowner is substantially disproportionate to the benefit conferred upon that landowner by the fence in question. “(B) Whether the cost of the fence would exceed the difference in the value of the real property before and after its installation. “(C) Whether the financial burden to one landowner would impose an undue financial hardship given that party’s financial circumstances as demonstrated by reasonable proof. “(D) The reasonableness of a particular construction or maintenance project, including all of the following: “(i) The extent to which the costs of the project appear to be unnecessary or excessive. “(ii) The extent to which the costs of the project appear to be the result of the landowner’s personal aesthetic, architectural, or other preferences. “(E) Any other equitable factors appropriate under the circumstances. “(4) Where a party rebuts the presumption in paragraph (1) by a preponderance of the evidence, the court shall, in its discretion, consistent with the party’s circumstances, order either a contribution of less than an equal share for the costs of construction, maintenance, or necessary replacement of the fence, or order no contribution. “(c) For the purposes of this section, the following terms have the following meanings: “(1) ‘Landowner’ means a private person or entity that lawfully holds any possessory interest in real property, and does not include a city, county, city and county, district, public corporation, or other political subdivision, public body, or public agency. “(2) ‘Adjoining’ means contiguous to or in contact with.”

1. Effective until December 31, 2013 § 841. Monuments and fences “Coterminous owners are mutually bound equally to maintain: “1. The boundaries and monuments between them; “2. The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards encloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.” See also some of the earlier cases describing the need for only a partial enclosure of the reluctant owner’s property to trigger contribution, i.e., Haehlen v. Wilson (1936) 11 Cal.App.2d 437, 440; Gonzales v. Wasson (1876) 51 Cal. 295, 298. 2. Mending Wall (1914), by Robert Frost (1874–1963), in the author’s second collection of poetry, North of Boston. 3. Effective January 1, 2014 § 841. “(a) Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them. “(b)(1) Adjoining landowners are presumed to share an equal benefit from any fence dividing their properties and, unless otherwise agreed to by the parties in a written agreement, shall be presumed to be equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of the fence. “(2) Where a landowner intends to incur costs for a fence described in paragraph (1), the landowner shall give 30 days’ prior written notice to each affected adjoining landowner. The notice shall include notification of the presumption of equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence. The notice shall include a description of the nature of the problem facing the shared fence, the proposed solution for addressing the problem, the estimated construction or maintenance costs involved to address the problem, the proposed cost sharing approach, and the proposed timeline

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4. § 841.4. Fence exceeding specified height as nuisance; Spite Fences: “Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in Title 3, Part 3, Division 4 of this code.” 100

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Litigation

The Primary Right Doctrine and Duplicative Damage Awards: Avoiding Reduction or Reversal on Appeal By Judge Judy Holzer Hersher

ot quite four years ago, the Judicial Council of California Civil Jury Instructions (“CACI”) added “Instruction 3934: Damages on Multiple Legal Theories” to its offerings. The resource also provides a suggested verdict form (CACI No.VF-3920). Both the instruction and verdict form were drafted after Roby v. McKesson Corp. (2009) 47 Cal.4th 686 (Roby), a Yolo County employment case. From submission to verdict, the Roby jurors, who had to evaluate claims based on harassment, discrimination, failure to accommodate, and wrongful termination, had difficulty understanding how to value the different damage claims. The special verdict form proved to be ambiguous and, in many instances, the jury awarded duplicative damages. Untangling the awards was challenging for the trial court, the Third District Court of Appeal, and the California Supreme Court. Under case law, a plaintiff is entitled to only one award for each sustained injury. The legal premise is based on the “primary right doctrine,” which holds that a legal cause of action is founded upon an indivisible “primary right” to be free from the particular injury, a corresponding “primary duty” of the defendant not to engage in the offending conduct, and a wrongful act by the defendant constituting a breach of that duty warranting the payment of damages. A plaintiff is entitled to no more than a single recovery for each distinct item of compensable damage arising out of the same primary right, no matter how many different theories of recovery or counts are pled. (See Roby, supra, 47 Cal.4th at p. 702; Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798; Crowley v. Katleman (1994) 8 Cal.4th 666, 681682; Plotnik v. Meihaus Jr. (2012) 208 Cal.App.4th 1590, 1612; Tavaglione v. Billings (1993) 4 Cal.4th 1150, 11581159.) As recent cases have shown, verdict forms that fail to distinguish clearly between awards that appear to violate the primary right doctrine may result in reversal and retrial, unless a trial or appellate court can make sense of what happened from the record.

An appellate court will reverse a special verdict that is ambiguous and/or awards duplicative damages. Plotnik v. Meihaus, Jr., supra, 208 Cal.App.4th 1590, is a recent example of how juries and parties run afoul of the primary right doctrine and duplicative damages. The

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Plotnik plaintiffs sued their neighbor and his two sons alleging breach of contract and tort damages they suffered when three defendant family members violated a restraining order, damaged plaintiffs’ property, and assaulted their dog with a baseball bat. A prior settled lawsuit contained a mutual restraining order prohibiting continuing offensive conduct between the parties. In the second suit, plaintiffs arrived home to find their fence and trees damaged. Plaintiffs’ dog went through the opening into defendants’ yard and was returned with the help of a swing of a baseball bat. The jury was asked to return a 33-page verdict on 32 separate issues. The case is illustrative in that a number of theories allowed for recovery of non-economic damages, whereas they typically do not. Plaintiffs’ theories of recovery included (1) breach of contract and emotional distress thereunder;1 (2) trespass to personal property with accompanying emotional distress; and the (3) negligent and (4) intentional infliction of emotional distress. The jury found, and the appellate court let stand, that one defendant intentionally harmed plaintiffs’ dog, and thus the award for emotional distress damages to plaintiffs via the trespass to personal property cause of action was appropriate.2 The jury also, however, awarded separate emotional distress damages to plaintiffs under each of the other tort actions, as well as emotional distress damages arising out of the breach of the mutual restraining settlement agreement. The issue on appeal was whether there were duplicative non-economic damages that violated the primary right doctrine. With respect to the tort awards for emotional distress caused by plaintiffs witnessing and/or dealing with their dog’s injuries, the appellate court held these noneconomic damages had already been compensated by the jury under the trespass to property cause of action. With respect to any emotional distress caused by defendants’ actions against plaintiffs personally, the court found that any noneconomic damages had already been awarded by the jury via the breach of contract cause of action, which under the facts of the case allowed for an award of noneconomic damages as well. Where the appellate court could not identify awards based on independent conduct or different primary rights, it struck them from the judgment. (Plotnik v. Meihaus, Jr., supra, 208 Cal.App.4th at p. 1612 [citations].)

Litigation Reduction, Reversal or Confirmation—it all depends on the record.

testimony in the record showed the error. (Roby, supra, 47 Cal.4th at pp. 698-700 and fn. 5.) The duplicative or ambiguous judgment problems did not end at the trial court, however. The appellate court found the awards for non-economic damages arising from wrongful termination ($500,000) and for discrimination ($300,000) compensated plaintiff for the same primary right, i.e., the termination. It therefore struck the smaller $300,000 award, finding that the $500,000 award included the $300,000. It also struck separate awards for harassment ($600,000 in past and future economic damages and $500,000 in past and future non-economic damages), based on insufficient evidence. On review, the Supreme Court reinstated the harassment claim for the legal reasons discussed in the decision, but found it was impossible to determine from the evidence, argument, and verdict, if all the non-economic awards--including the two addressed by the Court of Appeal and the now reinstated harassment awards--overlapped. Counsel was unable to explain how the jury could “logically” award $500,000 for termination in violation of public policy, but only $300,000 for discrimination, the public policy at issue. Nor could counsel explain why the non-economic damage awards for harassment differed against the corporation and the supervisor. Plaintiff conceded the ambiguities, as there was no evidence in the record of an act of discrimination separate from any failure to accommodate her disability or her wrongful termination claim, and since the non-economic awards for harassment appeared based solely on the conduct of the supervisor. (Roby, supra, 47 Cal.4th at p. 704.) Further, the high court could not discern how the noneconomic damages arising out of acts prior to plaintiff’s actual termination (i.e., $800,000 for failure to accommodate) could be higher than the non-economic damages that occurred after she was terminated. Given the pervasive record of jury confusion, the primary right doctrine issues, and the record, the high court was unable to correct or reconcile the judgment.5

The parties should give a trial court every opportunity to clarify or remedy any duplicative damage issue before it gets to the appellate court. A party’s failure to request a correction or clarification of the verdict before the jury is discharged may amount to a waiver of the ambiguity or defect. (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal. App.4th 1083, 1092, fn. 5.) 3 Importantly, appellate courts review a special verdict de novo, so the record is extremely important. If there is sufficient evidence in the record to work with, they will attempt to uphold or revise an award, rather than order a new trial. (Id. at pp. 1092-1093.) Roby, supra, 47 Cal.4th 686, is illustrative. The plaintiff in Roby sued her employer and supervisor on several theories, including wrongful discharge in violation of public policy, harassment (Gov. Code, § 12940, subd. (j)(1)), discrimination (Gov. Code § 12940, subd. (a)), and failure to accommodate her disability (Gov. Code, § 12940, subd. (m)). At trial, the court told the jury that any damage claims for past and future lost wages and benefits awarded under three of the claims--wrongful termination, discrimination, and the failure to accommodate--were all based on plaintiff’s claim of improper termination. (Id. at p. 697.) The court thus instructed the jury that if it found the defendant(s) violated any these laws, the same amount of economic damages would apply to all three, and the jury should insert the same dollar numbers on the special verdict form. The court also told the jury that while it (jury) might put the same amounts down more than once, the court would insure that a judgment was given only once for the economic damages awarded. The court next advised that certain awards for noneconomic damages, i.e., emotional distress, could vary, if based on specific and independent conduct arising as a result of discrimination, failure to accommodate, or wrongful termination. (Id. at pp. 697-698, fns. 2, 3.) In closing argument, however, plaintiff’s counsel identified a lump sum that he was seeking for his client with respect to non-economic damages, or $1.5 million “and no more.” He did not attempt to apportion the awards for these damages among the various theories. The jury, confused, thought he was asking for a total award--economic and non-economic--of $1.5 million. Thus, the first time the jury returned with its verdict, the form reflected awards for each theory of recovery of $1.5 million. The trial court sent the jury back to reconsider and correct the awards.4 The second time the jury returned, it awarded $605,000 for past economic losses and $706,000 for future non-economic damages. The court, on post-trial motion, reduced the total damage award by $706,000. It learned that the jury confused the testimony on reduction to present value and had awarded the pre- and post-reduction amounts for economic damages as the past and future damage awards. The trial court was able to make the correction because the

“… a special verdict on multiple counts should include factual findings identifying any duplicative amounts….” How, then, to draft a special verdict and jury instructions to avoid Roby-like problems? There are two options. The first is to use CACI 3934 and VF-3920, which together allow jurors to make a single award of a particular type of damage across all enumerated theories. (See VF3920: “[e.g., economic damages: lost past earnings]. [Enter the amount below if you find that [name of defendant] is liable to [name of plaintiff] under [specify all of the legal theories supporting this element of damages; use ‘or’ if more than one].]”.) The second option is discussed in an appellate case that was published around the same time as the new CACI in103

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Litigation structions. It suggests (1) having the jury award each item of damage under each count, even if the same award is made under more than one theory of recovery; (2) that the court instruct the jury that it will insure that the award is made only once; (3) that trial counsel identify in the special verdict the type of damage and the act it compensates; and (4) that the parties ensure there is a good record to support any independent awards. In this way, should problems arise, the trial judge then can send the jury back to deliberate and/or make corrections. (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357.) Regardless of the approach, specific examples of damage identification are discussed in CACI 3934’s Directions for Use and are recommended. With respect to employment cases, for example, the verdict form might identify the following: “emotional distress from harassment before termination of employment” and/or “additional emotional distress because of termination of employment.” CACI 3934 may also be helpful in cases involving legal theories that do not implicate the primary right doctrine, but which could result in duplicative awards. For example, in a case alleging both defamation and improper removal from a board of directors, the verdict might specify “emotional distress from being defamed publically” versus “emotional distress from being improperly and forcefully ousted from a board of directors.” (See, e.g., Tavaglione v. Billings, supra, 4 Cal.4th at p.1158.)

A Strategy for Avoiding Reduction and/or Retrial Recognizing that there is both art and strategy to struc-

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1. Identify the various primary rights implicated in the trial. 2. Evaluate if and how the primary right doctrine may affect any damage awards. 3. Avoid problems through the introduction of evidence in response to tailored questions in order to make a clear record. 4. Set up in opening, and identify in closing, each item of damage and the factual basis upon which compensation is premised. 5. Help jurors understand which damages are the same across the various theories of recovery, and explain they will be paid only once, either by order of the court, after trial, or as singly identified on the special verdict form. 6. Craft a special verdict form that is particularized with respect to each item of damage and the basis for the award. 7. Consider how to use and/or modify CACI 3934. 8. Address on the record and resolve primary right issues at the jury instruction and special verdict drafting stage. 9. Ask that the jury remain after the verdict is read until counsel and the court are comfortable that there are no inconsistencies in the findings. 10. Determine whether the court can remedy any duplicative award, or whether the jury should be instructed to continue deliberations. Consider whether additional argument should be allowed and/or additional instruction given. 11. If no party requests clarification, the jury is dismissed, and the issue of duplicative damages arises thereafter, the trial court should be asked to interpret the verdict in light of the evidence and resolve any inconsistency or confusion, if possible. 1 The appellate court held plaintiffs had cognizable claims for both economic and non-economic damages under the specific contract at issue, i.e., the settlement agreement containing the mutual restraining orders had, as its object, the mental and emotional well-being of its contracting parties. (Plotnik v. Meihaus, Jr., supra, 208 Cal.App.4th at pp. 1601-1602 [Citations].) 2 The appellate court let the award stand after a comprehensive review of the law related to damages for pets. (Plotnik v. Meihaus, Jr., supra, 208 Cal. App.4th at pp. 1605-1607.) 3 Zagami v. James A. Crone, Inc., supra, 160 Cal.App.4th at pp. 1091-1092, contains an excellent summary of case law on the rules appellate courts follow in evaluating issues of conflicting or inconsistent answers to questions in special verdicts, evidence, duplicative damages, and primary right issues. It is too long to include here, but is recommended for review. (See also Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 358.) 4 Jurors continue to be confused when told numbers on the special verdict form can be the same. (See, e.g., Gadow v. Rest (2013 Cal.App. Unpub. LEXIS 9413.) 5 Parts of the judgment were modified by stipulation and others were returned to the Court of Appeal for correction.

Let’s Be

turing a special verdict form, the takeaway from the cases suggests the following:

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THE VIEW FROM THE CIVIL TRIAL BENCH

Judge Judy Holzer Hersher, Sacramento County Superior Court

Settlement Demands in Excess of Available Insurance: Good or Bad Faith Offers under Code of Civil Procedure Section 998? by Judge Judy Holzer Hersher This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments should be addressed to HersherJ@saccourt.ca.gov.

ode of Civil Procedure §998i is a powerful statute designed to encourage pretrial settlement through a series of financial rewards and penalties. More specifically, in all but a very limited number of cases it punishes a party who declines a reasonable settlement offer and fails to obtain a more favorable judgment after trial. (Guerrero v. Rodan Termite Control, Inc. (2008) 163 Cal.App.4th 1435, 1440; Heritage Engineering Construction, Inc. v. City of Industry (1998) 65 Cal.App.4th 1435, 1439; Code Civ. Proc. § 998 subd. (g) and (i).) Section 998 works by withholding otherwise awardable incurred costs or by augmenting other party incurred costs and expert witness fees. For example, a plaintiff who rejects a reasonable settlement offer and fails to obtain a more favorable judgment after trial forfeits his or her rights to certain prevailing party costs and, in turn, must pay certain litigation costs to the defendant. This includes possibly all of defendant’s incurred and reasonably necessary expert witness fees since the inception of the case. (Code Civ. Proc. § 998, subd. (c)(1) and (e).) Similarly, a defendant who rejects a reasonable settlement from a plaintiff and who fails to obtain a more favorable judgment assumes the plaintiff’s post-offer costs of expert witnesses. (Code Civ. Proc. § 998, subd. (d).) For both sides, the costs can run into the thousands, if not millions, of dollars. The cost shifting mechanism occurs post-verdict and after the court

considers the nature and circumstances surrounding pre-verdict offers to take judgment in accord with the specific terms and conditions stated in a formal offer between the parties. The affected costs and fees are identified in Code of Civil Procedure sections 1031,ii 1032iii and 1033.5iv, as well as section 998. Under certain circumstances, an award of prejudgment interest calculated at the rate of 10 percent is also available from the date of the first offer by a plaintiff who later obtains a more favorable judgment. (Civ. Code §3291.)v Do Insurance Policy Limits Matter? How have recent courts handled the circumstance where a plaintiff has offered to settle with one or more defendants in an amount that exceeds a defendant’s available insurance? What role, if any, does an insurance policy play in a court’s consideration of the good faith or reasonableness of a section 998 offer? Can an offer that exceeds available insurance ever be considered in good faith? Does it matter if the plaintiff is aware of the policy limits or that there is more than one defendant covered by a particular policy? Before any party can be obtain the cost shifting benefits of section 998, the trial court must make a determination that the offer was reasonable, made in good faith and must have had a reasonable chance of being accepted. (Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1112; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262.) Whether the offer is was reasonable “depends upon the infor-

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mation available to the parties as of the date the offer was served.” (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 130.) Reasonableness generally “is measured, first, by determining whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial, discounted by an appropriate factor for receipt of money by plaintiff before trial, all premised upon information that was known or reasonably should have been known to the defendant,” and “[i]f an experienced attorney or judge, standing in defendant’s shoes, would place the prediction within a range of reasonably possible results, the prediction is reasonable.” (Aguilar v. Gostischef (2013) 220 Cal.App.4th 475, 479-481; Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699.) Next, the court considers whether the information available to the offeror was known or reasonably should have been known by the offeree. (Whatley-Miller v. Cooper, supra, 212 Cal.App.4th at p. 1113.) An offeree cannot be expected to accept an offer if there is no reason to know whether the offer is reasonable. (Ibid; Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at p. 699.) A court also looks at the outcome at trial. If the offeror obtained a more favorable judgment, the judgment establishes prima facie evidence that the offer was reasonable. (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 116-117.)

LITIGATION An offer to compromise that exceeds insurance policy limits is made in good faith where the defendant‘s insurance company fails to timely disclose its policy. An offer to compromise that exceeds insurance policy limits is made in good faith where the defendant‘s insurance company fails to disclose policy limits before the submission of an offer under Code of Civil Procedure section 998. (See Aguilar v. Gostischef, supra, 220 Cal.App.4th at pp. 479481.) In Aguilar, the plaintiff suffered the loss of his leg when his motorcycle was negligently struck by the defendant automobile driver. (Id. at pp. 478-479.) Prior to trial, both parties agreed that the plaintiff’s reasonable and necessary costs for past medical expenses exceeded $500,000. (Id. at p. 477.) In an effort to settle, the plaintiff made three discovery requests for policy limits from the insurance company, but the company made no response to the request or the plaintiff’s stated intent to make an offer within policy limits. Consequently, the plaintiff submitted an offer in the amount of $700,000. (Id. at p. 478.) After rejection of the offer, the case went to trial, and the jury found for the plaintiff in the amount of $2.3 million. (Ibid.) On appeal, the insurance company sought to tax $1.6 million in post-offer expenses awarded to the plaintiff by the court pursuant to the cost-shifting penalties and rewards of Code of Civil Procedure section 998, arguing that the plaintiff’s offer to settle for $700,000 was in bad faith because it exceeded the defendant’s $100,000 policy limit and because the defendant was struggling financially and could not agree to that amount. (Ibid.) In affirming the trial court’s decision to award the costs, the Second Appellate District found, among other factors, that the offer was in good faith because the company delayed the disclosure of policy limits despite the plaintiff’s stated

attempts to settle within those limits. (Id. at pp. 479-482.) It ordered the insurer to pay the costs, which included prejudgment interest. Both the court and the insurance company acknowledged that an insurer can be liable for damages in excess of policy limits if the company fails to accept a reasonable offer. (Id. at pp. 480-481.) Here, the court found that the multiple requests to negotiate from the plaintiff represented a reasonable settlement opportunity, thus the company’s failure to disclose its limits as part of those negotiation requests exposed it to greater liability. (Ibid.) Furthermore, the insurer failed to show that the plaintiff’s offer was unreasonable based on the plaintiff’s lack of knowledge, because the company denied the plaintiff’s repeated attempts to find out the insurance limits and reach a settlement within those limits. (Id. at pp. 480-482.) Lastly, the court did not challenge the superior’s court conclusion that the jury’s award constituted prima facie evidence that the offer was reasonable because the awarded damages were substantially higher than the offer. (Id. at p. 479.) Offers to compromise can be reasonable and in good faith even though the same insurer is exposed to multiple liabilities through defense of multiple parties. Further, an offer to compromise can be reasonable and in good faith even though the same insurer exposes itself to multiple liabilities by undertaking the defense of multiple parties. (Arno v. Helinet Corp. (2005) 130 Cal.4th 1019, 1027.) In Arno, the plaintiff was injured in a helicopter crash and sought damages from the pilot, the helicopter company, and the helicopter’s owner. (Id. at p. 1022). The plaintiff offered to settle for $999,999 with the pilot, but the defendant allowed the offer to expire. The same offer was extended to the helicopter company, but was ultimately rejected. (Ibid.) Following a jury trial, 107

the plaintiff was awarded $13.1 million in damages, and approximately $3.6 million in costs related to the rejection of the settlement offer. (Id. at pp. 1022-1023.) On appeal, the defendants argued that the offer was not made in good faith because the interests of the insurer were not considered when determining the reasonableness of the offer. (Id. at p. 1023.) Moreover, the defense contended that rejection of the offer to the pilot was reasonable because the insurer, which represented both the pilot and helicopter company, would not decrease its exposure by settling on behalf of one of its insureds. (Ibid.) In affirming the decision, the Second Appellate District held that the offer was made in good faith because any consideration of the insurer’s interests in evaluating the reasonableness of an offer under Code of Civil Procedure section 998 is firmly within the discretion of the trial court. (Id. at p. 1025.) Moreover, the court found that the cost shifting was justified because a settlement with the pilot would be credited to the remaining defendants and would reduce the damages liability of the pilot’s company. (Id. at p. 1027.) Finally, the court determined that the primary aim of the statute to encourage settlements would be frustrated if parties could restrict the discretion of the trial court with considerations of insurers or other defendants. (Ibid.) From the rationale of these two cases, it appears that there is no per se rule that makes the limits of an insurance policy determinative of whether a section 998 offer is or is not reasonable when made. Rather, the amount of coverage, the timing of its disclosure, the injuries sustained by the parties, their respective potential liability under the facts as then known, and whether liability among multiple defendants is joint and several or individual,

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LITIGATION are factors to take into account when considering the reasonableness of the offer. Endnotes i. § 998. Offer to compromise; Recovery of costs; Inapplicability of law (a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. (b) Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any

other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party. (1) If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. In

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the case of an arbitration, the offer with proof of acceptance shall be filed with the arbitrator or arbitrators who shall promptly render an award accordingly. (2) If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration. (3) For purposes of this subdivision, a trial or arbitration shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or counsel, and if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence. (c) (1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post offer costs and shall pay the defendant›s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant. (2) (A) In determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the post offer costs. (B) It is the intent of the Legislature in enacting subparagraph (A) to supersede the holding in Encinitas Plaza Real v. Knight, 209 Cal.App.3d 996, that attorney’s fees awarded to the prevailing party were not costs for purposes of this section but were part of the judgment. (d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover post offer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff›s costs. (e) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly. (f) Police officers shall be deemed to be expert witnesses for the purposes of this section. For purposes of this section, «plaintiff» includes a cross-complainant and «defendant» includes a

LITIGATION cross-defendant. Any judgment or award entered pursuant to this section shall be deemed to be a compromise settlement. (g) This chapter does not apply to either of the following: (1) An offer that is made by a plaintiff in an eminent domain action. (2) Any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor. (h) The costs for services of expert witnesses for trial under subdivisions (c) and (d) shall not exceed those specified in Section 68092.5 of the Government Code. (i) This section shall not apply to labor arbitrations filed pursuant to memoranda of understanding under the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1 of the Government Code). ii. § 1031. Attorney fees in actions for recovery of wages In actions for the recovery of wages for labor performed, where the amount of the demand, exclusive of interest, does not exceed three hundred dollars ($300), the court shall add, as part of the cost, in any judgment recovered by the plaintiff or cross-complainant, an attorney’s fee not exceeding 20 percent of the amount recovered. iii. § 1032. Recovery of costs by prevailing party as matter of right (a) As used in this section, unless the context clearly requires otherwise: (1) «Complaint» includes a cross-complaint (2) «Defendant» includes a cross-defendant or a person against whom a complaint is filed (3) «Plaintiff» includes a cross-complainant or a party who files a complaint in intervention (4) «Prevailing party» includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the «prevailing party» shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. (b) Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (c) Nothing in this section shall prohibit parties from stipulating to alternative procedures for awarding costs in the litigation pursuant to rules adopted under Section 1034. iv. § 1033.5. Items allowable as costs (a) The following items are allowable as costs under Section 1032: (1) Filing, motion, and jury fees. (2) Juror food and lodging while they are kept together during trial and after the jury retires

for deliberation. (3) Taking, video recording, and transcribing necessary depositions including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed, and travel expenses to attend depositions. (4) Service of process by a public officer, registered process server, or other means, as follows: (A) When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service. (B) If service is by a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless those charges are successfully challenged by a party to the action. (C) When service is by publication, the recoverable cost is the sum actually incurred in effecting service. (D) When service is by a means other than that set forth in subparagraph (A), (B), or (C), the recoverable cost is the lesser of the sum actually incurred, or the amount allowed to a public officer in this state for that service, except that the court may allow the sum actually incurred in effecting service upon application pursuant to paragraph (4) of subdivision (c). (5) Expenses of attachment including keeper›s fees. (6) Premiums on necessary surety bonds (7) Ordinary witness fees pursuant to Section 68093 of the Government Code. (8) Fees of expert witnesses ordered by the court. (9) Transcripts of court proceedings ordered by the court. (10) Attorney›s fees, when authorized by any of the following: (A) Contract. (B) Statute. (C) Law. (11) Court reporter fees as established by statute (12) Court interpreter fees for a qualified court interpreter authorized by the court for an indigent person represented by a qualified legal services project, as defined in Section 6213 of the Business and Professions Code or a pro bono attorney as defined in Section 8030.4 of the Business and Professions Code. (13) Models and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact. (14) Any other item that is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or on appeal. (b) The following items are not allowable as costs, except when expressly authorized by law: (1) Fees of experts not ordered by the court. (2) Investigation expenses in preparing the case for trial. (3) Postage, telephone, and photocopying charges, except for exhibits. 109

(4) Costs in investigation of jurors or in preparation for voir dire. (5) Transcripts of court proceedings not ordered by the court. (c) Any award of costs shall be subject to the following: (1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount (4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court›s discretion. (5) When any statute of this state refers to the award of «costs and attorney›s fees,» attorney›s fees are an item and component of the costs to be awarded and are allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a). Any claim not based upon the court›s established schedule of attorney›s fees for actions on a contract shall bear the burden of proof. Attorney›s fees allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a) may be fixed as follows: (A) upon a noticed motion, (B) at the time a statement of decision is rendered, (C) upon application supported by affidavit made concurrently with a claim for other costs, or (D) upon entry of default judgment. Attorney›s fees allowable as costs pursuant to subparagraph (A) or (C) of paragraph (10) of subdivision (a) shall be fixed either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties. Attorney›s fees awarded pursuant to Section 1717 of the Civil Code are allowable costs under Section 1032 of this code as authorized by subparagraph (A) of paragraph (10) of subdivision (a). v. § 3291. Personal injury actions In any action brought to recover damages for personal injury sustained by any person resulting from or occasioned by the tort of any other person, corporation, association, or partnership, whether by negligence or by willful intent of the other person, corporation, association, or partnership, and whether the injury was fatal or otherwise, it is lawful for the plaintiff in the complaint to claim interest on the damages alleged as provided in this section. If the plaintiff makes an offer pursuant to Section 998 of the Code of Civil Procedure which the defendant does not accept prior to trial or within 30 days, whichever occurs first, and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum calculated from the date of the plaintiff’s first offer pursuant to Section 998 of the Code of Civil Procedure which is exceeded by the judgment, and interest shall accrue until the satisfaction of judgment. This section shall not apply to a public entity, or to a public employee for an act or omission within the scope of employment, and neither the public entity nor the public employee shall be liable, directly or indirectly, to any person for any interest imposed by this section.

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THE VIEW FROM THE CIVIL TRIAL BENCH

Judge Judy Holzer Hersher, Sacramento County Superior Court. She is the co-author of the forthcoming CACI Jury Instruction Handbook (West).

Posting Jury Fees by Sides: The Impact of Changes to Code of Civil Procedure Section 631 on Last Minute Motions Affecting the Right to a Jury Trial by Judge Judy Holzer Hersher

alifornia Code of Civil Procedure (CCP) section 6311 was amended by the legislature in 2012. Up until that time, civil litigants were required to pay or “post” jury fees 25 calendar days before the first date set for trial, otherwise their right to a jury trial was deemed waived. Under the pre-2012 statute, prepaid jury fees were available for refund if there was a settlement, or the case or party depositing the funds was dismissed. Budget battles and shortfalls in revenue prompted the legislature to revamp the rules via the Budget Act of 2012, known as the Public Safety Omnibus Bill, AB 1481, to help “offset the costs to the state of providing juries in civil cases.” (CCP § 631(b).) Specific changes were made to when and how litigants deposit jury fees. Importantly, the required date for deposit was significantly advanced and, effective upon enactment, the initial deposited jury fees were no longer refundable for any reason. (CCP § 631.3(c).)2 3 More parties are now required to post fees. These changes leave open the question of how, if at all, the new law might affect motions to reinstate the right to a jury trial when the mandated fees are not deposited or timely demands are not made. Under the new statute, at least one party demanding a jury “on each side of a civil case” is required to pay a nonrefundable fee of one hundred and fifty dollars ($150.00) on or before the initial case management conference in the action, with some special exceptions noted. (CCP § 631(b) and (c).) That means that if both plaintiff

and defendant want a jury trial, both must post fees to avoid waiver. Similarly, at least one cross-complainant and one-cross-defendant should post fees, as it often comes to pass that a complaint may not make it into a courtroom for trial, but the cross-action will. If there is more than one plaintiff or defendant, all plaintiffs are considered “one side,” and all defendants are considered “one side.” (CCP § 631(b).) Although not specifically mentioned, it follows that all cross-complainants would be “one side,” and all cross-defendants, another “side.” This means in some instances a plaintiff/cross-defendant may well want to make two (2) deposits—one as the plaintiff and another as the cross-defendant, in the event either the underlying action or cross-action is dismissed or resolved prior to trial, and/or there are different parties associated with the complaint and cross-action. The same holds true for defendants, who are both defendant and cross-complainant in the action. Despite who timely pays, a party seeking a jury trial is required also to announce that a jury “is required” at the time the case is first set for trial, if set upon notice or stipulation, or within five (5) days after notice of setting if it is set without notice or stipulation. (See CCP § 631(f)(4).) This is because subsection (f) reads that “A party waives trial by jury in any of the following ways (emphasis added): … (4) By failing to announce that a jury is required, at the time the cause is first set for trial…” It used to be that if the requesting/ depositing party exited the litigation,

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the remaining or opposing party had the ability to quickly “pick up” and post fees and demand a jury trial and/ or file for relief. (See, e.g., March v. Pettis (1977) 66 Cal.App.3d 473.) Under the new law, the posting deadline usually falls between 180 and 210 days after a case is filed, unless the case involves landlord tenant issues. In the later instance, jury fees must be paid five days before trial, or if the first appearance of the party comes later than 365 days after the filing of the initial complaint or within a certain other specified filing dates, then 25 calendar days before the date initially set for trial. (CCP § 631(c)(1-4).) So what happens if a litigant fails to timely deposit the fees or announce the need for a jury trial under the new law? Does the new statute really change anything, given both the federal and state constitution, case law, and the strong public policy in favor of jury trials? Prior to the change, CCP section 631 provided that a court may, in its discretion and upon just terms, allow a trial by jury although there may have been a waiver. (See former CCP § 631(e).) The same language appears in the current statute at subsection (g). The new statute also reiterates, “The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate… .” (CCP § 631(a).) At the same time, and consistent with prior case law, there is no basis to believe that the new statute has abrogated a trial court’s power to deny a jury trial

LITIGATION if the parties have waived that right consistent with legislative dictates. (See, e.g., Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 951 [describing the powers granted a court consistent with the constitution and legislative mandates].) The current statute provides─as it always has─for the Court to consider all the equities in favor of and against allowing a jury trial, and to exercise its discretion in the matter. (CCP § 631(g).) As in the past, relief likely will be denied where the reason for the demand appears to be the party’s late change of mind, a pretext to obtain a continuance, or where sharp litigation practices or demonstrable prejudice to the other “side(s)” is evident. (See, e.g., Byram v. Superior Court (1977) 74 Cal.App.3d 648, 653-654.) However, due to the much longer time period during which the parties are on notice that a particular party or “side” will or will not seek a jury trial, there is greater potential for a party opposing a late request for a jury to argue that it has been “prejudiced” or “harmed” by the delayed request, and that with the passage of time, its trial and discovery strategy has been formulated with a court trial on the horizon. The “pick-up” time frame thus may have been shortened considerably. There are no reported decisions that post-date the statute change. Time will tell if the change has made any difference, not only to the courts’ financial bottom line, but to the ability to secure a jury trial when failing to comply with the new statute.

of the case. The fee shall offset the costs to the state of providing juries in civil cases. If there are more than two parties to the case, for purposes of this section only, all plaintiffs shall be considered one side of the case, and all other parties shall be considered the other side of the case. Payment of the fee by a party on one side of the case shall not relieve parties on the other side of the case from waiver pursuant to subdivision (f). (c) The fee described in subdivision (b) shall be due on or before the date scheduled for the initial case management conference in the action, except as follows: (1) In unlawful detainer actions, the fees shall be due at least five days before

the date set for trial. (2) If no case management conference is scheduled in a civil action, or the initial case management conference occurred before June 28, 2012, and the initial complaint was filed on or after July 1, 2011, the fee shall be due no later than 365 calendar days after the filing of the initial complaint. (3) If the initial case management conference occurred before June 28, 2012, and the initial complaint in the case was filed before July 1, 2011, the fee shall be due at least 25 calendar days before the date initially set for trial. (4) If the party requesting a jury has

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Endnotes 1 § 631. Demand for jury trial by adverse parties; Fees; Waiver of jury trial; Jury trial notwithstanding waiver (a) The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (f). (b) At least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side 111

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LITIGATION not appeared before the initial case management conference, or first appeared more than 365 calendar days after the filing of the initial complaint, the fee shall be due at least 25 calendar days before the date initially set for trial. (d) If a party failed to timely pay the fee described in subdivision (b) that was due between June 27, 2012, and November 30, 2012, the party will be relieved of a jury waiver on that basis only if the party pays the fee on or before December 31, 2012, or 25 calendar days before the date initially set for trial, whichever is earlier. (e) The parties demanding a jury trial shall deposit with the clerk or judge, at the beginning of the second and each succeeding day’s session, a sum equal to that day’s fees and mileage of the jury, including the fees and mileage for the trial jury panel if the trial jury has not yet been selected and sworn. If more than one party has demanded a jury, the respective amount to be paid daily by each party demanding a jury shall be determined by stipulation of the parties or by order of the court. (f) A party waives trial by jury in any of the following ways: (1) By failing to appear at the trial. (2) By written consent filed with the clerk or judge. (3) By oral consent, in open court, entered in the minutes.

(4) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation. (5) By failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee. (6) By failing to deposit with the clerk or judge, at the beginning of the second and each succeeding day’s session, the sum provided in subdivision (e). (g) The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury. (h) The court shall transmit the fee described in subdivision (b) to the State Treasury for deposit in the Trial Court Trust Fund within 45 calendar days after the end of the month in which the fee is paid to the court. 2 § 631.3. When jury fees not to be refunded; Disposition of fees not refunded; Disposition of fees of juror serving on more than one case in same day (a) Notwithstanding any other law, when a party to the litigation has deposited jury fees with the judge or clerk and that party waives a jury or obtains a continuance of the trial, or the case is settled, none of the deposit shall be refunded if the court finds there has been insufficient time to notify the jurors that the trial would not proceed

at the time set. If the jury fees so deposited are not refunded for any of these reasons, or if a refund of jury fees deposited with the judge or clerk has not been requested, in writing, by the depositing party within 20 business days from the date on which the jury is waived or the action is settled, dismissed, or a continuance thereof granted, the fees shall be transmitted to the Controller for deposit into the Trial Court Trust Fund. (b) All jury fees and mileage fees that may accrue by reason of a juror serving on more than one case in the same day shall be transmitted to the Controller for deposit into the Trial Court Trust Fund. All jury fees that were deposited with the court in advance of trial pursuant to Section 631 prior to January 1, 1999, and that remain on deposit in cases that were settled, dismissed, or otherwise disposed of, and three years have passed since the date the case was settled, dismissed, or otherwise disposed of, shall be transmitted to the Controller for deposit into the Trial Court Trust Fund. (c) The fee described in subdivision (b) of Section 631 shall be nonrefundable and is not subject to this section. 3 CCP section 631.3(b) allows for the return of jury fees if a case is settled, but the statute, by its wording contemplates that the potentially refundable fees do not include the initial deposits, but all other deposits that may have occurred as a result of the trial.

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THE VIEW FROM THE CIVIL TRIAL BENCH

Judge Judy Holzer Hersher, Sacramento County Superior Court

The Demise of “Camping Rights” (Unlimited Jury Time) in Civil Trials by Judge Judy Holzer Hersher

redicting the length of a jury trial and getting it done within that time can be challenging. Generally it is not an issue for those who have prepared witnesses, organized exhibits, and carefully crafted, non-repetitive questions. For others, the outcome is less certain. With the dwindling availability of civil courtrooms statewide, there is increasing pressure on trial judges to get trials done more efficiently, in less time. Thus it should come as no surprise that a recent appellate court has waded into the issues surrounding time limitations that a trial judge can impose on attorneys. (California Crane School, Inc. v. National Commission for Certification of Crane Operators et al. (2014) 226 Cal. App.4th 12, hereinafter “Crane”.) Notably, Crane spends no time discussing the facts or law litigated in the case (Cartwright Antitrust Act, Bus. & Prof. Code §16700 et seq., unfair competition, and other business torts). Rather, it focuses on a trial court’s power and duty to work with counsel in setting appropriate time limits when a particular case, court schedule, or experience with counsel warrants. In no way do the justices hold that time limitations should be given in all or even most cases. Rather, they explain what needs to go into the decision-making if time limitations will be applied.

“Efficiency is not necessarily measured by comparing the actual length of a trial with the parties’ original time estimate because parties often overestimate or underestimate a trial’s length.” (Crane at p. 20.) There are a variety of statutes and ethical canons in play and which have granted judges the tools to balance fairness with time limitations. (See Evid. Code § 352, empowering trial judges to limit the presentation of relevant and probative evidence in the face of undue consumption of time; Evid. Code § 765(a), mandating that a trial court shall exercise control over the mode of interrogation of witnesses “so as to make interrogation as rapid, as distinct and as effective for the ascertainment of truth…;” Gov. Code § 68600 et seq., mandating the prompt disposition of all matters; Standard 2.1(a) of the California Standards of Judicial Administration (“…from the commencement of litigation to its resolution, whether by trial or settlement, any elapsed time other than reasonably required for … court events is unacceptable and should be eliminated”); Canon 3B(8) of the California Code of Judicial Ethics, providing that “[a] judge shall dispose of all judicial matters fairly, promptly and efficiently… in a manner that provides all litigants the opportunity to have their matters fairly adjudicated in accordance with

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the law.”) (Crane, supra, 226 Cal. App.4th at pp. 19-20 & fn. 3.) “Some litigants are of the mistaken opinion that when they are assigned to a court for trial they have camping rights.” (Crane at p. 19.) So how long is long enough for any given trial to satisfy the rights of civil litigants to have their fair day in court? As Crane explains, it is not whatever time it may actually take a lawyer or party to put on their case. Rather, it is the considered experience of a judge and unique circumstances of a case that control. The Crane court put it this way: “Some litigants are of the mistaken opinion that when they are assigned to a court for trial they have camping rights. This view presumes that the trial judge must defer to the lawyers’ time estimates for the conduct of the trial such that, for example, when examining witnesses, unless a valid objection is made by one’s opponent, a party is entitled to take whatever time it believes necessary to question each witness. This view is not only contrary to law but undermines a trial judge’s obligation to be protective of the court’s time and resources as well as the time and interests of trial witnesses, jurors and other litigants waiting in line to have their cases assigned to a courtroom.” (Id. at p. 19.) At the appellate level, the appellant (plaintiff) argued that the trial judge impermissibly limited the presentation of his rebuttal evidence. Appellant estimated a four to

LITIGATION six week jury trial with 30 witnesses before trial began. After pretrial rulings narrowed the issues, the Court advised counsel they should be able to complete the case in no more than nine to 10 days. Appellant reportedly responded that the time frame was “optimistic.” Nothing more was said, and the record is silent with respect to any response by the respondent (defendant) at this juncture to the trial court. Shortly thereafter, based on further rulings, the Court expanded the permitted length to 12 days, giving six days to each side. Little more is offered in the decision to give perspective on the complexity, if any, of the legal or factual issues remaining. Apparently 12 days was considered reasonable by the parties. At relevant junctures throughout the trial, the Court checked with counsel about the pace of presentation of evidence and the need to move the trial along, noting that while the schedule was “not chiseled in stone,” he expected counsel to demonstrate greater effort to make it work. The judge’s urgings went unheeded. Direct and cross-examination with certain witnesses took much longer than anticipated, and the Court was not sympathetic based both on what it observed and what had been discussed. The case went to the jury on the 11th day after each side agreed to no more than a one-hour closing. The jury returned a verdict on the 12th day. The appellate court was not sympathetic to appellant’s argument that the trial court had unfairly limited his rebuttal time. Nor did it find that judges must or should defer to attorney time estimates. The justices found that the trial court had been “proactive from the start” in assessing what a reasonable trial time estimate was, actively monitoring the trial’s progress,

checking in with counsel, and admonishing counsel about timing. No Comment about Time Limitations in Front of the Jury absent Court Approval So how then to prepare for possible time constraints? Crane suggests the following: 1. Attorneys should give their best estimate of the length of their side of the case and invite opposing counsel to comment on the estimate. Counsel should include the time anticipated for jury selection, instruction, deliberation, and returning the verdict. 2. Trial judges will then independently evaluate the estimates based on the issues, witnesses, and, available schedule, in light of their experience. 3. Attorneys should offer why a particular case/issues/witnesses merit more or less time. 4. Time limits, if any, should be expressed using court-days or hours. Crane posits that using hours per side, rather than days, may be fairer, since “days” may be affected by juror tardiness, matters outside the presence of the jury, or other court business. Also, assigned hours means that lengthy cross-examination counts against the other side, as well as any late raised issues that could have been addressed pre-trial. 5. Unanticipated trial events (i.e., not the product of lack of preparation) should be brought promptly to the Court’s attention, which may justify increasing the time allotment. 6. Counsel and Court can agree in advance whether to allow counsel to advise the jury when its allotted time has expired and that the side has simply “rested,” or 115

for the Court to inform the jury that the offering party had more evidence to present, but time limitations prevented it from doing so. (Crane, supra, 226 Cal. App.4th at p. 22.) Otherwise, as noted in footnote 7, page 22, “just as it would be improper to comment on a court’s evidentiary ruling, it would be improper for counsel to comment on the court’s time limit order in front of the jury.” When has a trial judge gone too far in imposing time constraints? As with the exclusion of evidence generally, the test is whether a miscarriage of justice has taken place. “A judgment will not be reversed due to the erroneous exclusion of evidence unless it appears, upon examining the entire cause, including the evidence, a miscarriage of justice has resulted. (Cal. Const., art. VI, § 13; Evid. Code, § 354.) A miscarriage of justice occurs only when the reviewing court is convinced it is reasonably probable a result more favorable to the appellant would have been reached absent the error. (In re Marriage of Smith (1978) 79 Cal.App.3d 725, 750-751.).” (Crane, supra, at p. 24.) Counsel may wish to compare the actions of the attorneys and trial judge in Crane with those in In re Marriage of Carlsson (2008) 163 Cal.App.4th 281 and related Inquiry Concerning Judge Peter J. McBrien (2010) 49 Cal.4th CJP Supp. 315 (In a marital dissolution case, the trial court deprived a husband of his due process right to a fair hearing, where the court abruptly ended the trial before the husband finished putting on his case-in-chief and by ending the trial while an expert for the husband was on the stand and the husband’s counsel was in the midst of asking the expert a question.).

www.sacbar.org | January/February 2015 | SACRAMENTO LAWYER

Collection of Articles by Judge Judy Holzer Hersher

2008-2015

SACRAMENTO LAWYER | January/February 2015 | www.sacbar.org