Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIC444070, Dallas Holmes, Judge.
Mugg & Harper and Leigh O. Harper for Defendant and Appellant.
Law Office of Mann and Elias and Scott Mann for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
Defendant and appellant Moreno Valley Unified School District (District) appeals from the trial court’s order granting the motion of plaintiff and respondent Mary Ramirez for a new trial on her claim for injuries suffered when her motorized scooter flipped over on or near a muddy sidewalk on District property. The trial court granted the new trial motion based on defense counsel’s misconduct when it told the jury during closing argument that Ramirez was asking for a “taxpayer bailout.” As discussed below, we conclude that the trial court did not abuse its discretion and so affirm the trial court’s order granting Ramirez a new trial.
Facts and Procedure
On January 31, 2006, Ramirez filed her complaint alleging premises liability as a cause of action in her personal injury lawsuit. Ramirez alleged District “so negligently and carelessly owned, operated, maintained... the above premises, so as to cause a dangerous and hazardous conditions, accumulated mud on sidewalk which caused plaintiff’s motorized scooter to spin and flip over causing injuries and damages.”
After other defendants were dismissed, the matter was tried over five days, from June 15 to June 19, 2009. Near the beginning of his closing argument, District’s counsel apparently attempted to counter plaintiff’s argument regarding “responsibility.”
“[DEFENSE COUNSEL]: [Plaintiff’s counsel] and I agree on a few things. One of them is that this case is about responsibility. And before I talk about some of the specific factual circumstances involved here, and I promise I won’t be very long, I want to talk about this responsibility in a broader sense. What is really going on here? Because I believe this case is a microcosm of what we are seeing in our society today. Failure to take responsibility for our own actions. And just think about that for a moment. We see it every day more and more. [¶] We see politicians who don’t do it and point the finger. We see large companies, maybe even small companies, who don’t do it and are [fiscally] irresponsible and then ask the taxpayers to bail them out. We see it almost in every element of our society. Well, something happened to me. It can’t be my fault. It’s got to be someone else’s fault. In this context, what we do is we file lawsuits, because it’s somebody else’s fault, not mine. [¶] And so here we are, ladies and gentlemen, and, in essence, and in a very real sense, Ms. Ramirez is asking you to give her a taxpayerbailout
“[PLAINTIFF’S COUNSEL]: Objection, Your Honor.
“[DEFENSE COUNSEL]: -- for that accident.
“[PLAINTIFF’S COUNSEL]: Regarding the defendant’s funding and who’s going to pay the judgment, regarding the taxpayers.
“[THE COURT]: Well, he said “in essence.” When you look at People v. Molina, lawyers are given wide-ranging ability to discuss the facts, condemn motives. His illustrations may be as various as the resources of his genius, says the Court. So I’m going to allow that.”
District’s counsel then went on to argue the facts of the case. On June 19, the jury returned a verdict in favor of District. On the special verdict form, the jury indicated “yes” to the first question, “Did Moreno Valley Unified School District own or control the property?” but indicated “no” to the second question, “Was the property in a dangerous condition at the time of the incident?”
The judgment was filed on June 29, 2009. On July 16, 2009, Ramirez filed her motion for new trial. On August 26, 2009, after hearing from both parties, the trial court granted the motion for a new trial and ordered the judgment vacated and a new trial to be held. The trial court gave as its reason “the following irregularity in the proceedings which upon reflection prevented the plaintiff from having a fair trial: The reference by defense counsel in closing argument to plaintiff asking for a taxpayer bailout for her accident, along with this courts failure to sustain plaintiff counsels objection thereto. See Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174.” This appeal followed.
Discussion
District contends the trial court abused its discretion when it granted Ramirez’s motion for new trial based on defense counsel’s misconduct in characterizing Ramirez’s claim for damages as a request for a “taxpayer bailout.”
Code of Civil Procedure, section 657, states in part, “The verdict may be vacated... and a new or further trial... on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.”
Standard of Review
“‘A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. “‘The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’” [Citation.]’ [Citation.]” (Garcia v. Rehrig Internat., Inc. (2002) 99 Cal.App.4th 869, 874 (Rehrig).)
“‘Misconduct of counsel as a ground for new trial presents a matter primarily committed to the trial court. [Citation.] The judge who presides over the trial, who hears the testimony and the arguments, and whose own experience gives him a fine sense of the general atmosphere of trial proceedings, is in a far better position than appellate judges to evaluate the effect of disputed argument.’ [Citation.]” (Rehrig, supra, 99 Cal.App.4th at p. 874.)
The trial court expressly relied on Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174 (Du Jardin) in granting the motion for new trial. In Du Jardin, a school district employee sued the City of Oxnard for dangerous condition of public property after he fell into a hole in the floor of a dumpster that the City maintained and had delivered to the school district. During closing argument, defense counsel made the following statements:
“‘[DEFENSE COUNSEL]: When a public agency, be it a school or a library or a hospital is held liable for the admittedly negligent conduct of other people, we just have to sit back and start counting the public services that will disappear when we hold a public entity liable for the negligence of other persons. You know -
“‘[Plaintiff’s Counsel]: Excuse me, I’d like to have the last remark stricken. I don’t think that’s a relevant point in this case. The jury should disregard it.
“‘[THE COURT]: Well, ladies and gentlemen, you are not to be concerned with the consequences of what you do; other than you are to follow the law.
“‘[DEFENSE COUNSEL]: Precisely. And I look upon the negligence of persons unconnected with the public entities like sort of like the savings and loan scandle [sic], a bunch of bankers are negligent enough to lose billions of dollars, and who do they come begging to? Good ol’ government taxpayer.
“‘[PLAINTIFF’S COUNSEL]: Objection, your honor. Objection to this argument.
“‘[THE COURT]: Well, ladies and gentlemen, it’s not a matter of where the burden lies and who pays for what, it’s a matter of applying the law to the facts of the case. So I think the argument is improper. Sustained.’” (Id. at pp. 177-178.)
The jury returned a verdict in favor of the City. Du Jardin moved for a new trial based on prejudicial misconduct of defense counsel during closing argument. The trial court denied the motion, but the appellate court reversed, finding that, “Counsel has appealed directly to the jurors’ personal passions and prejudices.” (Id. at p. 179.)
We conclude, as did the trial court here, that District counsel’s comments that Ramirez was seeking a “taxpayer bailout” are as deliberate an attempt to “appeal to the social or economic prejudices of the jury” as were the counsel’s comments in Du Jardin, and are as prejudicial. While the appellate court in Du Jardin focused on counsel’s appeal to the possible loss of public services that would result from any award coming directly from the school district’s budget, the court was also very clear that “Argument which has no relevance to issues in a case and which is a transparent attempt to appeal to jurors’ emotions is clearly misconduct.” (Id. at pp. 179-180.) The subject of taxpayer bailouts has absolutely no relevance to whether Ramirez was injured by any failure by the District to remove mud from its sidewalk and, in our view, could only be an attempt to appeal to the jurors’ emotions.
There is a major difference between Du Jardin and the present case that weighs greatly in Ramirez’s favor. In Du Jardin, the appellate court found that the trial court had abused its discretion in denying the motion for new trial based on attorney misconduct. To the contrary, here the District has the burden to establish that the trial court abused its discretion in granting the same motion under somewhat similar facts. Whether this panel of this appellate court would have come to the same conclusion as the trial court here is not the standard. Rather, the District must convince this panel that the trial court acted irrationally and without any basis in the law when it found the argument by the District’s counsel to be prejudicial misconduct.
Further, the trial court in Du Jardin sustained one of plaintiff counsel’s objections to defense counsel’s comments, whereas here the trial court overruled the objection of Ramirez’s counsel and specifically allowed the jury to consider the comments of District’s counsel that “Ms. Ramirez is asking you to give her a taxpayer bailout.” This makes the District’s argument on appeal somewhat weaker than the City’s in Du Jardin, in that the jury here went into its deliberations without hearing that it should not consider “who pays for what” (Du Jardin, supra, 38 Cal.App.4that p. 178), that is, whether the District would be spending taxpayer money to pay Ramirez’s claim that would reduce the amount available for education.
To conclude, because: 1) District’s counsel appealed to the jury’s emotions and prejudices by characterizing Ramirez’s claim for damages as a request for the much-detested “taxpayer bailout”; 2) this argument is not at all relevant to the issues the jury was to consider; 3) the improper argument is similar to the one disapproved by the appellate court in Du Jardin when it found the trial court abused its discretion in not granting the new trial motion; and 4) we simply cannot say that the trial court’s decision here is clearly a manifest and unmistakable abuse of discretion, we affirm the trial court’s order granting the motion for new trial.
Disposition
The trial court’s order granting the motion for new trial is affirmed. Respondent awarded her costs on appeal.
We concur: HOLLENHORST J., RICHLI J.