The opinion
Filed 6/12/15 Certified for Publication 7/7/15 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DONN MARTINEZ et al.,
Plaintiffs and Appellants, G048375 (Consol. with G048678)
v. (Super. Ct. No. 30-2011-00483327)
STATE OF CALIFORNIA, OPINION
DEPARTMENT OF
TRANSPORTATION,
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, James Di
Cesare, Judge. Reversed.
The Homampour Law Firm, Arash Homampour and Wendi O. Wagner;
Morey & Upton and Christopher J. Morey for Plaintiffs and Appellants.
Ronald W. Beals, Chief Counsel, Jeffrey R. Benowitz, Deputy Chief
Counsel, Glenn B. Mueller and John F. Smith, Assistant Chief Counsel, and Deborah A.
Cumba, Deputy Attorney for Defendant and Respondent.
1
* * *
I. INTRODUCTION
This is a case of egregious attorney misconduct. That word – egregious – is
difficult to write, but nothing else seems adequate. Blessed with a trial judge who
allowed it, trial counsel ran roughshod over opposing counsel and the rules of evidence.
We have no choice but to reverse.
Generally, what happened is this: Defendant‟s attorney Karen Bilotti
would ask a question in clear violation of the trial court‟s in limine orders. The question
would usually have the effect of gratuitously besmirching the character of plaintiff Donn
Martinez. An objection from Martinez‟s counsel would follow. The trial court would
sustain the objection. Bilotti would then ask the same question again. The trial court
would sustain the objection again. And the same thing would happen again. And again.
And again. And again.
Because of the cumulative effect of Bilotti‟s misconduct we must reverse
the judgment Bilotti obtained on behalf of her client, Caltrans. (See Gackstetter v.
Market S. R. Co. (1933) 130 Cal.App. 316, 325-327 [cumulative effect of attorney
comments constituting misconduct required reversal].) While Judge Di Cesare showed
the patience of Job – usually a virtue in a judge – that patience here had the effect of
favoring one side over the other. He allowed Bilotti to emphasize irrelevant and
inflammatory points concerning the plaintiff‟s character so often that he effectively gave
CalTrans an unfair advantage. Imagine a football game in which the referee continually
flagged one team for rule violations, but never actually imposed any yardage penalties on
it. That happened here and requires reversal.
2
II. FACTS
A. Pretrial
There is a complex freeway interchange in Orange County where three
freeways – the Santa Ana, the Garden Grove, and the 57 – all meet, known as the
“Orange Crush.” According to some editions of the Guinness Book of World Records,
the Orange Crush is the most complex road interchange in the world.1 Plaintiff Donn
Martinez was riding his motorcycle as part of a funeral train of motorcycles going from
the southeastbound Santa Ana freeway to the eastbound Garden Grove freeway. This
particular transition road parallels, and then merges with, a similar transition road coming
from the southbound 57 freeway, also heading toward the eastbound Garden Grove. The
two transition roads join in an acute angle: As they converge, there is a fairly low
(maybe a few inches) raised divider, technically called a “B4 curb,” that separates the two
roads. A sports utility vehicle might have no problem going over this low “B4 curb,” but
plaintiff alleged a motorcyclist could lose control if he or she collided with it, particularly
if its presence was unexpected because of low visibility.
According to Martinez, as he was riding on the Santa Ana to Garden Grove
transition road at dusk, he hit the curb, lost control of his motorcycle, and was injured.
He testified that because it was dusk he did not see any yellow lines or the curb itself, nor
was the area lighted. Martinez said it “was dark.”
The accident occurred when members of the funeral train in front of
Martinez started to move over to the 57-connector road from the Garden Grove-connector
road on which they were traveling. Martinez “looked and checked towards the 57 and
started to move over” when he hit the raised divider and lost control. In June 2011,
Martinez and his wife Irene Edens brought this action against Caltrans, contending the B4
1 See Haldane, A Gnarly Record for the Orange Crush, L.A. Times (July 21, 1997) [“Critics have
described it as „nightmarish,‟ and „dreaded‟ has almost become part of its name. Commuters curse it. Now, the
1998 edition of the Guinness Book of World Records has given the notorious Orange Crush a new description: the
most complex highway interchange in the world.”]. (See http://articles.latimes.com/1997/jul/21/news/mn-14792.)
3
curb constituted a dangerous condition of public property, particularly dangerous to
motorcycles.
In preparation for trial, Martinez‟s attorney was evidently concerned with
some of the cultural baggage associated with motorcyclists – including the very group
with which Martinez was riding. The funeral train was a group ride affiliated with the
“Set Free” ministries, whose members or adherents are sometimes called the “Set Free
Soldiers.”2 Martinez has been ordained as a minister by Set Free ministries. Martinez
testified his motorcycle was used to attract the attention of young people in his church
work. The logo of the Set Free Soldiers is a rather fearsome, skull-like face wearing –
and we choose our words carefully here – World War II German-style military helmet.
These are sometimes called “Fritz helmets,” and do not look much different in silhouette
from the advanced combat helmet currently used by the American Army. The Set Free
Soldier logo appeared on Martinez‟s motorcycle in at least two prominent places: on the
casing that holds the headlight at the front of the bike and on top of the gas tank right
over the engine. The logo is also clearly visible on a relatively large tag attached to the
key of the motorcycle as it hangs just under the seat.
Accordingly, Martinez‟s counsel brought several in limine motions. One
sought to exclude any references to Martinez‟s “membership in any motorcycle
club/gang or the stickers/emblems” of that gang. Counsel also sought to exclude
information about his termination of employment from a school district years before, in
2003. Both motions were granted. Also granted was a motion to exclude hearsay
statements from medical reports. Further, and more generally, Martinez‟s counsel also
sought – and obtained – a prohibition of evidence or testimony designed to elicit
2 Martinez‟s counsel‟s concern was reasonable. The Set Free Soldiers have been known to take on
the Hell‟s Angels (People v. Heslington (2011) 195 Cal.App.4th 947) and a jury might think of them primarily as a
motorcycle gang if they were reminded often enough.
4
sympathy from the jurors for Caltrans, including its allegedly strapped financial
condition.
B. Trial
1. Opening Statement: Among Other Things, Allusions to Defendant’s Financial Status
In her opening address to the jury, Bilotti made eight statements which
were improper. Two were broad statements of law that, without some qualification,
conveyed to the jury the idea Caltrans was totally immune from all claims. Three of the
statements implied that any accident that took place because a motorcyclist hit the divider
necessarily had to have arisen from the motorcyclist being negligent. The worse were
three which emphasized the state‟s dire financial condition in the context of saying there
was no money to replace the divider regardless of its dangerous vel non.
2. Cross-Examination of Martinez: Gratuitous Absenteeism References
Prior to Bilotti‟s cross-examination of Martinez, the trial judge had made an
in limine order putting the entire subject of Martinez‟s 2003 termination from a school
district off limits. We count no less than 10 direct violations of the judge‟s in limine
order in the course of her cross-examination. All the violations and references occurred
after a series of sustained objections and clear admonitions from the trial court.
3. Cross-examination of Martinez’s Wife: More Gratutious Absenteeism References
When Bilotti cross-examined Martinez‟s wife, Irene Edens, she repeatedly
brought up the topic of the 2003 termination. We count 13 violations of the in limine
motion not to ask Martinez about the 2003 termination, 12 of them after sustained
objections. It appears Bilotti asked virtually the same question (previously objected to,
objection sustained) about 10 times.
5
4. The Nazi Reference
In forensics there is what has become known as “Godwin‟s Law.” Broadly
speaking, Godwin‟s law is that the first side in an argument to compare the other side to
Hitler or the Nazis loses.3 Apparently unaware of this rule, Bilotti used Martinez‟s
damaged motorcycle to make a gratuitous, out-of-the-blue attempt to link Martinez to
Nazis.
The Nazi reference came at the end of Bilotti‟s cross-examination of
Martinez‟s wife Irene Edens. Bilotti‟s apparent strategy at that point in the trial was to
undercut the positive associations that had been built up by previous testimony
mentioning Martinez‟s ordination as a clergyman. Bilotti wanted to juxtapose those
associations against the tough-guy logo of the Set Free Soldiers as plastered on
Martinez‟s motorcycle. So, during her cross-examination of Edens, Bilotti made
reference to a certain exhibit 2.6. The exhibit, as shown in our record, is a picture of
Martinez‟s motorcycle showing the Set Free Soldiers logo on the gas tank and also
(prominently) on the key chain. Martinez had already testified he spent a year in
preparation for his ordination by Set Free ministries by studying the Bible and the license
plate on the motorcycle had the (Biblically ironic) appellation, “THE EVL 1.”4
Thus, after recounting Martinez‟s wife‟s testimony about Martinez‟s work
as a clergyman, Bilotti showed exhibit 2.6 to Irene Edens, and asked the judge to
“publish” it, i.e., show it to the jury. There was an immediate objection, and the trial
judge – prudently – said he would defer the matter until after the break where he could
consider it further.
3 See The Atantic, Goldberg, First Person to Invoke Hitler Loses (July 24, 2009),
http://www.theatlantic.com/international/archive/2009/07/first-person-to-invoke-hitler-loses/21892 (as of Oct. 8,
2014). For a serious discussion of in-court references to Hitler and the Nazis, including the problem of ad hominem
attacks, see Teninbaum, Reductio ad Hitlerum: Trumping the Judicial Nazi Card (2009) 2009 Mich. St. L. Rev.
541.
4 The devil is referred to as “the evil one” in some translations of two New Testament passages.
(See II Thessalonians 3:3; I John 5:19.) The trial judge showed remarkable insight as to the license plate. He
guessed, probably accurately, that it was the motorcycle itself that was being analogized to the devil.
6
Frustrated by the trial judge‟s unwillingness to let her show the picture of
the cycle immediately to the jury, Bilotti immediately played the Nazi card. She asked:
“At the time of the accident, the motorcycle that your husband was riding had a skull
picture on it wearing a Nazi helmet; right?”
5. The Argument on the Motion for Mistrial
The Nazi reference was the last straw for Martinez‟s long-suffering trial
counsel. Outside the presence of the jury he asked the judge to declare a mistrial. In the
ensuing argument on the motion, Bilotti plainly argued she was entitled to besmirch
Martinez‟s character in order to counteract any favorable impression that the jury might
have gotten of Martinez because of his work with Set Free ministries and his ordination
as a clergyman of that group. Despite the actual admissions that the Nazi reference had
been made to attack Martinez‟s character and the bell having been rung, the trial judge
denied the mistrial motion, and took no action to rein counsel in.
6. Closing Argument: More Appeals Based on the Financial Interest of the State
In Bilotti‟s closing argument five statements crossed the line. Two
followed the pattern begun in opening statement of implying that Martinez was
necessarily negligent, two slyly let the jury know that Martinez was uninsured and so the
state would have to pick up the tab for his injuries if it found in his favor, and the fifth
was a not-so-sly reiteration of the same point.
7. Closing Argument: The Nazi Reference Resurfaces
Martinez‟s counsel thought it necessary to decry the earlier Nazi reference
during his closing argument to the jury. Bilotti seized the opportunity in her own closing
to reinforce the association. Whereas before the Nazi reference was only to a helmet, and
was isolated, Bilotti now exploited the opportunity to psychologically link Martinez to
7
Nazis by paraleptically using the word “Nazi” six times in rapid succession.5 And this
time the link was stronger – Bilotti wasn‟t just referring to a mere article of clothing but
to Martinez himself.
8. Post-trial Events
The jury returned a defense verdict, stopping with a negative answer to the
very first question “Was the property in a dangerous condition at the time of the
incident?” Martinez brought a motion for new trial based on attorney misconduct, the
motion was denied, and this appeal timely ensued.
III. DISCUSSION
A. Misconduct
The law, like boxing, prohibits hitting below the belt. The basic rule
forbids an attorney to pander to the prejudice, passion or sympathy of the jury. (Seimon
v. Southern Pac. Transportation Co. (1977) 67 Cal.App.3d 600, 605.) In more concrete
terms, attorneys cannot make appeals based on irrelevant financial aspects of the case
such as the hardship that would be visited on a defendant from a plaintiff‟s verdict
(Hoffman v. Brandt (1966) 65 Cal.2d 549, 551-553 [defense counsel argument defendant
might end up in a home for the indigent was attorney misconduct]) or the hardship that
would be visited on a plaintiff from a defense verdict (Hart v. Wielt (1970) 4 Cal.App.3d
224, 234 [plaintiff‟s counsel‟s argument plaintiff would be a “a burden on the taxpayers”
lest jury find in her favor was attorney misconduct]). An attorney representing a public
entity commits misconduct by appealing to the jurors‟ self-interest as taxpayers. (E.g.,
Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174, 177 [argument that plaintiff‟s
5 Paralepsis is a formidable Greek word for the rhetorical trick of making a point by telling your
audience you don‟t want to make that very point. One of the most famous examples is from Marc Anthony‟s
famous Romans-lend-me-your-ears speech. Anthony says he came to bury Caesar, not praise him. No, the whole
point of the speech, in context, is that he really did come to praise Caesar, and thereby whip up the crowd against
Caesar‟s assassins. (See Bridges and Rickenbacker, The Art of Persuasion (1991) at p. 90 [“Nor is it incumbent
upon us to mention that paralepsis is the habitual refuge of the courtroom mechanic, who abuses it in order to
suggest to the jury what he can very well deny to the judge ever having said.”].)
8
verdict would mean that “public services” would start disappearing held misconduct].)
Similarly, it is misconduct to appeal to the defendant‟s perceived ability to pay any
judgment with ease. (Stone v. Foster (1980) 106 Cal.App.3d 334, 335.)
The rule also manifests itself by prohibiting irrelevant ad hominem attacks.
Thus a defense attorney commits misconduct in attempting to besmirch a plaintiff‟s
character. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 531; Stone, supra, 106
Cal.App.3d at p. 335.) Attorneys are not to mount a personal attack on the opposing
party even by insinuation. (Las Palmas Associates v. Las Palmas Center Associates
(1991) 235 Cal.App.3d 1220, 1246.)6
Did Bilotti commit misconduct in this case? Let us count merely the most
obvious ways. In just her opening statement there were three appeals to the jurors‟
interest qua taxpayers in her references to Caltrans‟ financial situation. She did it thrice
again in closing argument. Then there were the more than 10 references during her cross-
examination of Martinez on the irrelevant topic of Martinez‟s supposed discharge from a
job in 2003, and a similar number during her cross-examination of Martinez‟s wife.
Those references were all in the wake of an in limine ruling prohibiting them and
repeated sustained objections.
What is particularly egregious about Bilotti‟s idée fixe on the topic of
Martinez‟s supposed absenteeism is that she had no reason to harp on the topic except to
insinuate he was lazy and irresponsible. If Bilotti was following classic defense strategy,
she would have sought to establish that Martinez was in poor health as far back as 2003,
as a way of arguing the accident didn‟t leave him much more worse than before. And if
that was the case, she would have had reason to affirmatively avoid the word
“absenteeism.” The idea of “absenteeism” and suggestions those absences were not
health related would show Martinez was in reasonably good health in 2003, and would
6 The impeachment of an opposing party‟s credibility is, of course, perfectly allowed when relevant,
even though impeachment does not always reflect well on the party‟s character.
9
thus normally underscore the severity of the injuries for which he was suing Caltrans.
The only reason to continually return to the topic of absenteeism was to insinuate that
Martinez was using the accident to scam the legal system for money. If that is your
strategy, you have to do it openly – not by innuendo and insinuation.
Then, of course, there was the pièce de résistance, the Nazi reference. Here
the misconduct was particularly egregious for two reasons: the context in which the
reference was made, and Bilotti‟s later admission about the reason she brought it up.
First, the context. At the time, the focus of the trial was on the condition of Martinez‟s
motorcycle after the accident. Yes, the condition of the bike was obviously relevant. So
far so good. But there was no dispute over the identification of the bike, and the trial
judge wisely noted the picture of the motorcycle could be redacted to omit the Set Free
Soldiers logo and “evil one” license plate. But the picture wasn‟t going to be shown to
the jury before the judge himself had time to think about how to handle it. The interval
meant Bilotti was about to lose her opportunity to smear Martinez using the Set Free
Soldiers logo. And so, completely gratuitously, she described the logo in terms of a
“Nazi” helmet. It was, in short, a cheap shot deliberately taken before the judge had a
chance to prevent it.
And second, the motive. Bilotti was quite candid on the record before the
trial judge. She admitted she wanted to besmirch Martinez‟s character because some
positive evidence had come in (his church work) which tended to put him in a good light
and – though she didn‟t say this explicitly – counteract the easily exploitable image of the
plaintiff as a stereotypical low-life biker.
10
We have recounted the truly egregious, indisputable instances of
misconduct. Martinez, in this appeal, asserts there is yet more.7 But we see no reason to
go further. Suffice to say we found enough to establish attorney misconduct at least five
pages ago.
B. Prejudice
Obviously attorney misconduct is more common than reversal for attorney
misconduct. Prejudice must be shown. (See Garcia v. ConMed Corp., supra, 204
Cal.App.4th at p. 149 [“But it is not enough for a party to show attorney misconduct. In
order to justify a new trial, the party must demonstrate that the misconduct was
prejudicial.”].)
In Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 320-321, our
Supreme Court set forth a list of factors bearing on whether attorney misconduct is
prejudicial, and that list remains the go-to criteria. (See Garcia v. ConMed Corp. (2012)
204 Cal.App.4th 144, 149). The list is: (1) the nature and seriousness of the misconduct;
(2) the general atmosphere, including the judge‟s control of the trial; (3) the likelihood of
actual prejudice on the jury; and (4) the efficacy of objections or admonitions under all
the circumstances. In ascertaining prejudice, the reviewing court makes an independent
determination (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 872) in light of the
overall record (Sabella, supra, 70 Cal.2d at p. 320). Here, three of the four Sabella
factors weigh – indeed heavily weigh – on the side of prejudice. The fourth is more
evenly balanced, but still tilts toward prejudice.
Factor 1, the nature and seriousness of the misconduct. Bilotti just kept
asking the same question over and over again, oblivious to the trial judge‟s repeated
rulings and admonitions. That was directly disrespectful, almost as if Bilotti were daring
7 Most notably Martinez points to two more significant sets of misconduct: (1) Bilotti
misrepresented the evidence by continually assuming that Martinez was necessarily negligent, and (2) she
overstated Caltrans legal position by suggesting to the jury that Caltrans enjoys absolute, unqualified immunity from
all causes of action.
11
the trial judge to take some action to stop her. What is particularly egregious about these
repeated refusals to heed the judge‟s ruling is that Bilotti was exploiting qualities that are
usually associated with good judging. (See Bloom v. State of Illinois (1968) 391 U.S.
194, 202, 88 S.Ct. 1477, 1482, 20 L.Ed.2d 522 [“Contemptuous conduct, though a public
wrong, often strikes at the most vulnerable and human qualities of a judge's
temperament.”].) In a word, she was taking advantage of this judge‟s good nature.
Factor 2, the general atmosphere including the judge‟s control of the trial,
also weighs heavily in favor of reversal. By simply ignoring the trial judge‟s rulings,
Bilotti made it inevitable that the jury would conclude it didn‟t have to pay attention to
the trial judge either. After all, defense counsel was repeatedly ignoring what he told her
in front of their very eyes and getting away with it. He took no corrective action
whatsoever. The authoritative force of his instructions was seriously diminished by
Bilotti‟s conduct.
Factor 3, the likelihood of actual prejudice, is a bit more balanced, if only
because we cannot say a plaintiff‟s verdict was a foregone conclusion.8 But here is
where the character attacks add ballast to our conclusion the misconduct was prejudicial.
The jury could feel comfortable crediting the defense expert‟s view of the divider, secure
in the knowledge that Martinez was just a low-life biker with an affinity for “Nazi”
paraphernalia.
Finally factor 4, the efficacy of objections or admonitions, clearly weighs in
favor of reversal. Ms. Bilotti simply ignored the trial court‟s rulings and since there was
no penalty for doing so, she was able to infect the case with extraneous matter.
8 There is an argument in Martinez‟s opening brief we may summarily reject in this footnote. The
argument is that Caltrans presented no evidence the placement of the divider was actually reasonable. We note the
evidence on dangerous condition was conflicting, and decline the opportunity to award Martinez the equivalent of
summary judgment on appeal.
12
A further comment on the toxic Nazi reference is required. It is true that
Martinez‟s counsel felt the need to respond to the Nazi reference in his closing argument.
But he was put in that position by Bilotti, who had imposed on Martinez‟s counsel a
Hobson‟s choice: Ignore the reference and risk letting the jury base its decision on
Martinez‟s bad character, or confront the reference and risk further association with
Nazis. So it was, for Martinez, a lose-lose. There is an old saw in politics that if you
have to explain it, the damage has already been done. Martinez‟s counsel cannot be
faulted, under the circumstances, for trying to minimize the damage. But then, precisely
because Martinez‟s counsel tried to defuse the Nazi reference, Bilotti seized the
opportunity to double down on it. Instead of just saying something on the order of,
“sorry about my description of the helmet, that was a low blow, please dismiss it from
your minds, I got carried away,” she managed to use the word “Nazi” about Martinez six
times in about two breaths.
We are mindful of Sabella’s admonition that a client should not pay for its
counsel‟s sins: “Intemperate and unprofessional conduct by counsel as is here involved
runs a grave and unjustifiable risk of sacrificing an otherwise sound case for recovery [or
a defense verdict], and as such is a disservice to a litigant.” (Sabella, supra, 70 Cal.2d at
p. 321.) Ultimately, though, in this case it is the overwhelming cumulative effect of the
misconduct that requires reversal, a cumulative effect considerably greater than that in
Gackstetter, particularly given its focus on reasons Martinez the person should not
recover. A jury prejudiced against a litigant and determined to find against that litigant
is not one whose judgment can be trusted. While we recognize that the trial judge‟s
denial of the new trial motions must be accorded deference, this judge appears to have
been ready to excuse the disrespect represented by counsel‟s ignoring his rulings. On his
13
behalf, we are not. The misconduct forces us to reverse because it was unquestionably
prejudicial. (See Du Jardin, supra, 38 Cal.App.4th at p. 181.)9
IV. DISPOSITION
The judgment is reversed, and the matter remanded for further proceedings
not inconsistent with this opinion. Martinez shall recover his costs on appeal. Pursuant
to section 6086.7 of the Business and Professions Code, the clerk of this court is hereby
instructed to send a copy of this opinion to the State Bar, notifying it the reversal of the
judgment is based solely on prejudicial attorney misconduct. The mailing of this opinion
to counsel and its disposition will also constitute notification to Attorney Bilotti the
matter is being referred to the State Bar.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
THOMPSON, J.
9 Our reversal renders moot Martinez‟s argument concerning a Code of Civil Procedure section 998
offer.
14
Filed 7/7/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DONN MARTINEZ et al.,
Plaintiffs and Appellants, G048375 (Consol. with G048678)
v. (Super. Ct. No. 30-2011-00483327)
STATE OF CALIFORNIA, ORDER GRANTING REQUEST
DEPARTMENT OF FOR PUBLICATION
TRANSPORTATION,
Defendant and Respondent.
The court has received multiple requests for publication of our opinion in
this matter, filed June 12, 2015. After reviewing these requests, we have concluded the
opinion indeed merits the requirements for publication. Pursuant to California Rules of
Court, rule 8.1105(b), (c)(2), (4) and (6), the requests are GRANTED.
The opinion is ordered published in the Official Reports.
1
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
THOMPSON, J.
2