(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

PROCEDURES FOR GRANTING A NEW TRIAL

In listing the grounds for granting a new trial, the court should parallel the language of Civil Code of Procedure section 657 as closely as possible. (Mercer v. Perez (1968) 68 Cal.2d 104, 111.) The court must specify in writing the grounds for its decision to grant a new trial, either by minute order or by order signed by the court and filed by the clerk. (Code Civ. Proc. §§ 657, 660.)

In addition to specifying the grounds supporting its decision, the court must specify its reasons for granting a new trial on each of the grounds stated in its order. (Code Civ. Proc. § 657; Mercer v. Perez, supra, 68 Cal.2d at 111.) The specification of reasons must be in writing, oral statements will not suffice. (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 62.)

If the court's specification of reasons is not contained in the order granting the new trial, the 10-day period for filing a separate specification of reasons runs from the date the minute order granting a new trial is entered (even if written order is later signed and filed). (Code Civ. Proc. § 657.) The 10-day period may extend beyond the 60-day period for ruling on a new trial motion. (Code Civ. Proc. §§ 657, 660.)

The court's power to rule on a new trial expires 60 days after filing of the first notice of intention to move for a new trial or service of written notice of entry of judgment, whichever occurs first. (See Code Civ. Proc. § 660.)

CONCLUSION

For the reasons set forth above, the court should grant a new trial. At the very least, there should be a substantial remittitur of the damage award.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

Nonetheless, Dr. Sutton, plaintiff's vocational rehabilitation expert, testified concerning plaintiff's future earning capacity and potential lost earnings based on the unsupported assumption that plaintiff would have returned to work full time in the CAD industry. Dr. Sutton's conclusions regarding plaintiff's potential future earnings a CAD drafter, placing her in the 90th percentile in terms of salary, were based on speculation and conjecture. Moreover, Dr. Sutton made these assumptions about plaintiff's future salary without knowing or evaluating what her salary rank had been the last time she was employed in the AutoCAD field. While plaintiff returned to school after being laid off from her position as a drafter to study English and accounting, she had not formally upgraded her CAD certifications.

Therefore, Dr. Sutton's opinions regarding plaintiff's potential future lost wages were based on pure speculation and cannot serve as a basis for the jury's award. The evidence was not sufficient to support that plaintiff would have been able to successfully change jobs and would have advanced to the position of a senior CAD drafter.

In short, the jury's award in this case is clearly excessive and should be reduced. (See Part 11 of 11.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

Here, the jury's award of $15.1 million in non-economic damages is excessive in light of the evidence and should be reduced by the court. While the evidence established that plaintiff suffered a severe brain injury, there was no evidence that plaintiff's injury is so debilitating that she cannot function or perform daily activities. Kim Hind, plaintiff's treating occupational therapist, testified that plaintiff was able to exercise independently, prepare and eat breakfast independently, could follow simple directions, was able to select clothes and dress without assistance as well as perform personal hygiene without assistance. Ms. Hind also testified that plaintiff was able to do laundry, vacuum, swim, and write checks all with minimal assistance. Plaintiff is ambulatory and able to walk without the assistance of a wheelchair, a walker, or any other device.

In light of plaintiff's abilities to perform numerous daily functions that are a part of normal life, an award of $15.1 million in non-economic damages is grossly excessive. It is clear the jury made its award based on sympathy and passion, influenced by trial counsel's improper "golden rule" argument, and not based upon the facts of the case.

At the time of the accident in 2006, plaintiff was working part time at Skye Books doing computer support and clerical work. Plaintiff had not worked full time since 2002 when she was laid off as an AutoCAD drafter due to a shortage of work. Plaintiff, however, sought damages for lost future wages on the theory that plaintiff would have returned to the CAD industry instead of continuing to work part time at Skye Books. Yet plaintiff, who is 50 years old, had taken no affirmative steps to obtain employment in the CAD industry since she had been laid off. Plaintiff submitted no job applications for CAD work, had been on no job interviews, and had not identified a single possible employer for CAD. Plaintiff therefore did not present evidence that it was reasonably certain she would have obtained a full time position as a CAD drafter instead of remaining in the part-time job she had at the time of the accident. (See Part 10 of 11.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

A NEW TRIAL IS WARRANTED BECAUSE THE DAMAGE AWARD IS EXCESSIVE.

This court has the explicit ability to grant a new trial based upon [e]xcessive. . . damages. (Code Civ. Proc., § 657, subd. 5.) The court's discretion is particularly broad when it comes to excessive damage awards. The trial judge not only has the discretion to grant a new trial on the ground of excessive damages, but it is his duty to do so, or to provide for a reduction of the verdict, if under the evidence he believes it to be too large. (Collins v. Lucky Markets, Inc. (1969) 274 Cal.App.2d 645, 652; accord Handelman v. Victor Equipment Co. (1971) 21 Cal.App.3d 902, 909.) If the trial court concludes the jury awarded excessive damages, it may grant a new trial on liability as well as damages. (Collins v. Lucky Markets, Inc., supra, 274 Cal.App.2d 645, 649; accord, Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 443; see Code Civ. Proc. § 657, subd. 5.)

Alternatively, if the court finds excessive damages, it may order a remittitur in an amount that the court in its independent judgment determines from the evidence to be fair and reasonable and condition the denial of a new trial on plaintiffs' acceptance of that reduced sum. (Code Civ. Proc., § 662.5.) In ruling on a motion for new trial for excessive damages, the trial judge sits as an independent trier of fact, not in an appellate capacity. (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 933.) This role as a fact finder is conferred on the trial court by Code of Civil Procedure section 662.5.

The trial judge has a positive duty to keep the verdict in line with the facts when the matter is presented to him on motion for a new trial. (Thompson v. John Strona & Sons (1970) 5 Cal.App.3d 705, 711.) It is fundamental that damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery. (Earp v. Nobmann (1981) 122 Cal.App.3d 270, 294, disapproved on other grounds; Silberg v. Anderson (1990) 50 Cal.3d 205.) (See Part 9 of 11.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

Well, this temporary job, to go through all these things, being in a coma, don't go home, live in a rehab facility, have folks tell you when to get up, when to go to bed, going through all sorts of therapies, do that for almost two years, what would be a - what would be a fair hourly rate if you have to put in a classified ad to get one person to sign up, if you could, what's an hour worth?

[" But think again about the classified ad. Classified ad: full-time job, thirty years plus, sign up today, sign up today, and you will be expected to do the things that [plaintiff] has had to go through and will have to go through the rest of your life. How many people would sign up for that? "].)

Counsel's argument was nothing more than a thinly veiled attempt to ask each juror personally what he or she would expect as compensation for plaintiff's injuries. Indisputably, counsel's statements amounted to an improper golden rule argument that prejudiced the defense. Defense counsel objected to the improper argument, but the trial court overruled the objection.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

An argument that asks jurors how much money it would take to trade places with a severely injured plaintiff is impermissible for several reasons. First, "it in effect asks each juror to become a personal partisan advocate for the injured party, rather than an unbiased and unprejudiced weigher of the evidence." (Cassim, supra, 33 Cal.4th at 798.) Second, it tends to denigrate the jurors' oath to . . . render a true verdict according to the evidence. (Ibid.) Third, it can "tend to induce each juror to consider a higher figure than he otherwise might to avoid being considered self-abasing." (Loth v. Truck-A-Way Corp., supra, 60 Cal.App.4th at p. 765.)

During closing argument in this case, plaintiff's counsel asked the jury what amount of money it would take to convince someone, reading a newspaper advertisement, to submit voluntarily to the bus accident and injuries sustained by the plaintiff. Specifically, plaintiff's counsel argued:
Say there is a classified ad in the newspaper that said: temporary job, sign up April the 7th and hold that job almost two years, 24 hours a day, seven days a week. . . . All you have to do: If you see a bus coming at you in the crosswalk, let it strike you, hit your head on the pavement, and then go to San Francisco -- [defense counsel's objection overruled] and then you go to San Francisco General Hospital. . . . So the ad says that after the pressure keeps rising, you just have to submit yourself to craniectomy. They go in and actually remove a part of the skull.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

Mr. Stanley's testimony concerning how the bus accident occurred was therefore sufficient to support the inference that plaintiff may have failed to exercise due care. (See Hasson v. Ford Motor Co., supra, 19 Cal.3d at p. 548 [ the fact that evidence is circumstantial does not mean that it cannot be substantial. . . . the jury is entitled to accept persuasive circumstantial evidence even where contradicted by direct testimony ]; see also Scott v. Alpha Beta Co. (1980) 104 Cal.App.3d 305, 310 [the question of plaintiff's comparative fault is for the jury if there is any evidence from which a jury might reasonably conclude that plaintiff failed to exercise due care for her own safety ]; Jarvis v. Southern Pac. Transportation Co. (1983) 142 Cal.App.3d 246, 254-255 [in personal injury action, the issue of contributory negligence was properly submitted to the jury where there was evidence from which the jury could reasonably infer that plaintiff should have heard the sounds or vibrations of the oncoming railroad boxcar].)

This testimony, even if disputed, was sufficient to allow the issue of plaintiff's comparative fault to go to the jury. Accordingly, a new trial should be granted.

A NEW TRIAL IS WARRANTED BECAUSE PLAINTIFF'S COUNSEL'S IMPROPER GOLDEN RULE ARGUMENT ENCOURAGED THE JURY TO AWARD EXCESSIVE PAIN AND SUFFERING DAMAGES.

(60 Cal.App.4th at pp. 764-765 (internal citations omitted); see also Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 797 & fn. 4 (Cassim); Beagle v. Vasold (1966) 65 Cal.2d 166, 182, fn. 11 [ we do not . . . approve of the so-called golden rule argument, by which counsel asks the jurors to place themselves in the plaintiff's shoes and to award such damages as they would charge to undergo equivalent pain and suffering ]; Zibbell v. Southern Pacific Co. (1911) 160 Cal. 237, 255 [ "No rational being would change places with the injured man for an amount of gold that would fill the room of the court, yet no lawyer would contend such is the legal measure of damages' "]; Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 319 [appeal to jurors to place themselves in plaintiff's position is an improper tactic]; Horn v. Atchison, T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 609 [it is improper to appeal to the jurors to fix damages as if they or a loved one were the injured party ].) (See Part 6 of 11.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

Steve Black, an eyewitness to the accident, testified that "plaintiff was hit by the front of the bus as she was walking in the crosswalk." However, defendant's accident reconstruction expert, Paul Stanley, testified that, contrary to the eyewitness testimony, the point of impact occurred on the side of the bus, not at the front of the bus. Mr. Stanley explained that, based on the point of impact measured by the police officer at the scene and the location of the bus at rest, plaintiff came into contact with the driver's side of the bus. (Neither the location of the bus at rest, as depicted by plaintiff's photograph, nor the measurements of the police officer were objected to at trial).

Mr. Stanley further testified that, as the bus was turning left, it would have obscured Mr. Black's view of the accident. Most importantly, Mr. Stanley testified that there was nothing between plaintiff and the bus that would have obstructed plaintiff's view of the bus as she was walking toward it:
Q. If you go back two or three or four seconds or five seconds when you are doing your recreation, is there anything between the pedestrian and the bus that would preclude the ability to see the bus?
A. No. None at all
[Q. You've got two eyewitnesses say she was in front of the bus at the time of impact. But you have decided that she walked into . . . the left-hand side of the bus?
A. My hands are tied by the science. Like I said, it's uncomfortable to face a jury and say, look, people are saying front, the physical evidence says side, and there is no physical evidence that lets me put it in front of the bus ].)

Mr. Stanley's testimony therefore permits an inference that nothing obstructed plaintiff's view of the bus prior to the impact. Thus, despite the contrary eyewitness testimony that plaintiff was hit by the front of the bus, the jury was entitled to conclude, that had plaintiff been paying attention while crossing the street, she should have seen the bus turning in front of her and could have avoided the collision. (See Vehicle Code § 21950, subd. (b) [a pedestrian crossing the street in a marked or unmarked crosswalk has a duty to exercise reasonable care for his or her safety]; Smith v. Sugich Co. (1960) 179 Cal.App.2d 299, 311 ["It is the duty of a pedestrian to exercise reasonable care while crossing a street in a marked crosswalk, and to continue to be alert to safeguard against injury, and such duty continues throughout his passage."]) (See Part 5 of 11.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

The court erred in removing the issue of comparative negligence from the jury as there was sufficient evidence to support a finding of fault on the part of the plaintiff.

It is well settled that the issue of comparative negligence is a question of fact for the jury where there is sufficient evidence to support an affirmative finding. (See Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548 [ Where contributory negligence is asserted as a defense, and where there is "some evidence of a substantial character" to support a finding that such negligence occurred, it is prejudicial error to refuse an instruction on this issue, since defendant is thereby denied a basic theory of his defense ] overruled on other grounds in Soule v. Gen. Motor Corp. (1994) 8 Cal.4th 548, 572.) Ordinarily issues of negligence are jury questions and the court may rarely decide comparative negligence questions without submitting them to the jury. (Maxwell v. Colbum (1980) 105 Cal.App.3d 180, 186.)

Here, defendant stipulated it was negligent and that its negligence was a substantial factor in causing plaintiff's injuries. Defendant, however, did not concede its affirmative defense of comparative negligence and requested that the jury be instructed on the issue of plaintiff's comparative fault. Plaintiff's counsel objected on the basis there was no evidence that could support a finding of fault on the part of the plaintiff. (Ibid.)

The court's refusal to instruct the jury on comparative fault warrants a new trial as there was sufficient evidence from which the jury may have reasonably concluded that plaintiff failed to exercise due care.

Plaintiff introduced evidence that she was hit by a bus making an illegal left hand turn while she was walking in the crosswalk. The evidence showed that the bus involved in this accident was approximately forty feet long and red. Photographs introduced at trial showed that the bus came to rest after the accident with approximately one third of its length past the crosswalk.
(See Part 4 of 11.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Toyota dealers resumed selling vehicles Thursday that were pulled from the sales lot to address sudden-acceleration problems as the automaker said lost sales and a series of related recalls would cost $2 billion.

That recall price tag would be one of the most expensive in automotive history, said auto information company Edmunds. com.

Also, the California state assembly reacted to Toyota Motor Corp.'s safety recalls and its decision to shutter the state's last auto manufacturing plant by voting Thursday to stop buying Toyota cars for use by lawmakers when they're in Sacramento. The Assembly Rules Committee voted to resume a 2003 policy of buying only U.S.-made cars for its 130-vehicle fleet.

Toyota stopped sales of eight models -- including its top-selling Camry and Corolla -- on Jan. 26, saying the gas pedals could get stuck and cause runaway acceleration. The automaker also shut down production of the vehicles for a week while it examined how to fix the problem, which it attributed to wear on the pedal system.

"We now have more than enough parts at dealers to take care of the flow of repairs. Dealers may sell a new car if the repair is made," said Mike Michels, a Toyota spokesman. "There is no single point in time when the stop sale would be lifted. It will be car by car."

The Prius problems and the size of Toyota's recall and repair expenses sent Toyota stock plunging again Thursday, dropping $1.71, or 2.3%, to $71.78. It has fallen 22% since the company's large recall to fix a sticky gas pedal that could cause unintended acceleration.

Toyota broke the cost of its loss down to about $1.1 billion to pay for two large recalls and about $880 million in lost vehicle sales.

The recalls have sparked several probes by federal and congressional investigators, who plan to look at whether the electronic systems in Toyota's autos could cause the problem, a notion that Toyota officials rejected in their call with investors Thursday.

"There has not been any fact that has been confirmed that certain unintended acceleration is caused by the electronics total control system," said Takuo Sasaki, Toyota's managing officer.

"They have handled this poorly. I am not convinced that they have in fact identified the problem," Hutson said. "The congressional hearings will pile on negative headlines, and there are plenty of other choices out there for consumers."

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

A NEW TRIAL IS WARRANTED BECAUSE THERE WAS SUBSTANTIAL EVIDENCE FROM WHICH A JURY COULD CONCLUDE THAT PLAINTIFF WAS COMPARATIVELY NEGLIGENT.

A directed verdict is appropriate only where there is no evidence to support a claim or defense.

A directed verdict is appropriate "only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629-630; see also Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 479-480.) In determining such a motion, the trial court has no power to weigh the evidence, and may not consider the credibility of witnesses. (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 629.)

A directed verdict may not be granted where there is any substantial evidence to support the claim or defense, "no matter how slight it may appear in comparison with the contradictory evidence." (Howard v. Owens Corning, supra, at pp. 630-631; see also Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1149-1150 [even slight evidence in support of a fact to be inferred may be sufficient to allow the issue to go to the jury].)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

Defendant, Universal Bus, LLC respectfully submits the following memorandum of points and authorities in support of their motion for a new trial:

INTRODUCTION

Defendant moves pursuant to CCP § 657 et seq, for a new trial on the claims made by plaintiff Jane Wong, a Sacramento resident. A new trial is warranted because:

1. The jury was not allowed to consider the comparative fault of the plaintiff despite evidence from which the jury could have reasonably concluded that plaintiff failed to exercise due care for her safety; and

2. Plaintiff's counsel's prejudicial and improper "golden rule" argument encouraged the jury to award excessive pain and suffering damages; and

3. The jury's award of damages was excessive.

LEGAL ARGUMENT

THE TRIAL COURT HAS BROAD AUTHORITY TO GRANT A NEW TRIAL.

On a motion for new trial, the court reviews the entire case and, if it concludes that a miscarriage of justice occurred on any of the grounds delineated in Code of Civil Procedure § 657, it must grant a new trial. (Mercer v. Perez (1968) 68 Cal.2d 104, 111.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It is also well settled that misconduct has often taken the form of improper argument to the jury, such as by urging facts not justified by the record or suggesting that the jury may resort to speculation (Malkasian v. Irwin, supra, 61 Cal.2d 738, 747); by informing the jury that an injured party has been compensated by a codefendant (Tobler v. Chapman (1973) 31 Cal.App.3d 568, 575); and by informing the jury of an offer of settlement and compromise (Granville v. Parsons (1968) 259 Cal.App.2d 298, 304). City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 870.

The issue of negligence by Defendant White was wrongly decided. The issues of causation and Dr. Black's damages were never decided. The argument of defendant's counsel at trial had the effect of injecting irrelevant, prejudicial, and misleading evidence into the proceedings, and resulted in a verdict tainted by passion and prejudice.

The Implication that Dr. Black was Working.

In reality there was no evidence that Dr. Black was employed during the time that he claimed to be disabled. The only income he had during this time frame was disability benefits or residual income. Despite knowing same, defense counsel, over the court's admonition, suggested repeatedly to the jury that Dr. Black was working when he claimed to be disabled - again impugning Dr. Black's credibility. He went so far as to examine Dr. Baker on a telephone message taken by a member of his staff, indicating that Dr. Black "needed a letter for work" and examine Dr. Mark on and thereby admitting into evidence a patient's history form on which Dr. Black reported that he was a CEO of a company.

Despite knowing that the true state of affairs was that plaintiff was not working, the jury was intentionally misled. Over objection, the court permitted the patient questionnaire to be presented into evidence and allowed Mr. Jones to question regarding same.

DR. BLACK WAS PREJUDICED BY THESE ERRORS.

Although the nature and scope of Dr. Black's injuries were hotly contested during the trial, it was never truly contested that Dr. Black did not receive some damage from the collisions. The issue is, and has always been, the nature and scope of Dr. Black's damages and the percent for which defendant White was responsible.

The substantial weight of the evidence presented at this trial supported that 1) Defendant White was a negligent cause of Dr. Black's injuries and damages; and 2) a portion of Dr. Black's injuries and damages were proximately caused by Defendant White's negligence. By the admission of inadmissible opinions and argument, Dr. Black was deprived of a fair and unbiased trial.

CONCLUSION

Plaintiff respectfully submits that the errors and irregularities which occurred during the trial of this action resulted in the jury being prejudiced toward Dr. Black, and ultimately, incorrectly finding no negligence by Defendant White. A defense verdict was rendered, despite the overwhelming evidence supporting negligence. If these errors were remedied, it is reasonably probable that Dr. Black would receive a verdict in his favor. Based on the foregoing, plaintiff Ethan Black requests this court grant his JNOV/new trial motion or in the alternative, his request for a new trial.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Granville v. Parsons, supra, the action before the jury involved only one defendant. In his opening statement counsel for the defendant advised the jury that there had been other defendants, and the court made an inconclusive ruling on plaintiff's objection. Counsel argued that the plaintiffs "know who was the guilty party...because...[he] was a defendant in this action and settlement...." Ibid. at 301-02. When former defendants were called as witnesses the defendant brought out that they had been dismissed as defendants and had paid the plaintiff in settlement for his brain injuries. No admonition or instruction was given to limit the effect of that impeaching testimony.

The court ruled on appeal, "... from the record before us we can come to only one conclusion: that defense counsel got carried away in his enthusiasm and deliberately argued the evidence concerning the dismissal and the settlement for an improper purpose." [Citations.] The case was extremely close. The misconduct was prejudicial. (Granville v. Parsons, supra, 259 Cal.App.2d at p. 304.)

The conduct by defense counsel in the above cited case is directly analogous to that of Mr. Jones's closing argument in the Black trial. This conduct alone would give rise to grounds for a new trial, but in the Black case it was even more inequitable. While allowing the defendant to inappropriately argue or inform the jury that Mr. Lyon had settled, implying fault and compensation, the court precluded the plaintiff from reciprocally being able to inform the jury that Iris Black was a plaintiff and had settled with defendant White. Iris Black did not elect not to sue Mrs. White. Mrs. White made the same decision to settle that Mr. Lyon made in reference to both plaintiffs in this auto accident case. There was in effect not only misconduct, but an unequal playing ground.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Section 1152 of the Evidence Code provides in pertinent part, (a) Evidence that a person has, in compromise ... furnished ... money ... to another who ... claims to have sustained loss or damage ... is inadmissible to prove his liability for the loss or damage or any part of it. Evidence of any settlement with or payment by Lyon was inadmissible to establish his liabilityin the auto collision, so all such references would also be improper. (Tobler v. Chapman (1973) 31 Cal.App.3d 568, 575.)

In fact it is well established that under parallel circumstances it is prejudicial misconduct to tell the jury that the injured party has been compensated by another codefendant who has been dismissed from the case and that such fact demonstrates that the remaining codefendant is not liable. Tobler v. Chapman, supra, 31 Cal.App.3d at p. 575 kiting Shepherd v. Walley (1972) 28 Cal.App.3d 1079, 1083-1084; Albrecht v. Broughton (1970) 6 Cal.App.3d 173, 178; and Granville v. Parsons (1968) 259 Cal.App.2d 298, 303, 304.)

The case of Albrecht v. Broughton, supra, is directly analogous to the case at bar. There the Court of Appeal reversed the trial court's denial of Plaintiff's new trial motion, finding prejudicial error in defense counsel's mention of settlement in arguing the issue of liability resulting in a defense verdict. Like Black, Albrecht was a case in which the evidence on liability was in conflict. Like Black, the court allowed evidence of a settlement with a co-defendant. The trial court in Albrecht then permitted in argument reference to the settlement. The Appellate Court held that this was error.

In Shepherd v. Walley, supra, the court focused on the following defense argument: Now, Mr. Prowant was formerly a defendant, and he settled with the plaintiff. She has been paid by him and dismissed him from the suit. I think that gives us a pretty: good idea of who the plaintiff thinks was responsible and liable. Nothing Mr. Wally did caused this accident and nothing he did should cause you to find him liable. (Shepherd v. Walley, 28 Cal.App.3d at p. 1083.) The Court of Appeal in Shepherd reversed the judgment in favor of defendant holding The presentation of evidence concerning the amount or fact of settlement to the jury...is not only confusing, but also can lead to abuse in argument as it did here. The defense counsel clearly used evidence of the fact of settlement for an improper purpose. [Citations.] Shepherd, supra at p. 1083.

This is almost verbatim the argument advanced by Mr. Jones. He argued that the true guilty party had settled, inferring not only that the settlement by Mr.; Lyon was evidence of fault, but also that Dr. Black would not be uncompensated. (See Part 11 of 12.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.