Opinion
D080032
06-08-2023
SCOTT CRIPPEN, Plaintiff and Appellant, v. ANNIKA WALLACE, Defendant and Respondent.
Rejali Law Firm and Omid Rejali, for Plaintiff and Appellant. Niddrie Addams Fuller Singh, John S. Addams; Law Offices of Keevil L. Markham, Scott J. Laqua, and Alexander T. Bauer, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2015-33402-CU-PA-CTL, Eddie C. Sturgeon, Judge. Affirmed.
Rejali Law Firm and Omid Rejali, for Plaintiff and Appellant.
Niddrie Addams Fuller Singh, John S. Addams; Law Offices of Keevil L. Markham, Scott J. Laqua, and Alexander T. Bauer, for Defendant and Respondent.
HUFFMAN, J.
In October 2013, a three-car accident on the Interstate 8 freeway left driver Scott Crippen injured. He sued Annika Wallace, one of the other drivers, alleging negligence and seeking damages for personal injury. She answered the complaint with a general denial and several affirmative defenses, but she did not plead the sudden emergency affirmative defense.
Crippen designated several experts, including Daniel W. Vomhof, an accident reconstructionist, and Ted C. Bloomquist, a biomechanics expert and accident reconstructionist. Wallace designated Stephen Plourd, an accident reconstructionist.
When the case was called for trial in October 2019, Crippen sought a continuance because Bloomquist was not available. The court granted the continuance. At a hearing in April 2021, in advance of the continued trial date, Crippen represented that he would not be calling Vomhof at trial and that Bloomquist would testify only as a biomechanics expert. Wallace sought to exclude Bloomquist's testimony.
Trial was held in September 2021. The court precluded Bloomquist from testifying as an accident reconstruction expert but allowed him to testify regarding biomechanics. At the close of evidence, Wallace asked to amend her answer to conform to proof of the sudden emergency affirmative defense. She also asked the court to instruct the jury with CACI No. 452, the instruction on that defense. The court denied both requests. It directed Wallace's attorney not to use the phrase "sudden emergency" or the word "emergency" in closing arguments. Wallace's attorney made arguments about the elements of the sudden emergency affirmative defense but complied with the court's instructions. Wallace's attorney also argued that Crippen had failed to offer any accident reconstruction evidence that contradicted the defense expert's explanation of events.
The jury returned a verdict in Wallace's favor, and Crippen sought a new trial based on Wallace's attorney's closing arguments. The court denied the request.
On appeal, Crippen contends the court erred by allowing Wallace to make arguments that substantively mirrored the sudden emergency defense. He also contends the court erred by refusing to allow Bloomquist to provide testimony regarding accident reconstruction. Finally, Crippen contends that Wallace's attorney's closing arguments constituted prejudicial misconduct that warrants a new trial. We find no merit in Crippen's contentions, and we affirm.
BACKGROUND AND PROCEDURAL HISTORY
At around 5:15 p.m. on October 4, 2013, 16-year-old Wallace was driving a Volkswagen Jetta westbound on Interstate 8. Wallace's mother Cynthia was sitting next to her, in the front passenger seat. Wallace traveled in the fourth lane from the left, going about 65 miles per hour. When traffic began to get denser, Wallace slowed to about 55 miles per hour.
Crippen was driving a red Fiat 124 Spider, traveling between 50 and 55 miles per hour, in the fifth lane from the left. He moved into Wallace's lane about five or six car lengths in front of her. Shortly after Crippen pulled into the lane, Michael Howland pulled his white Chevy Impala from the third lane into the fourth lane, immediately in front of Crippen's vehicle. Howland suddenly hit his brakes, and Crippen followed suit, but he was not able to avoid rear-ending Howland. Wallace also hit her brakes. She rear-ended Crippen. These events occurred in the span of two to three seconds.
California Highway Patrol Officer John Davis investigated the accident, which occurred just east of the Grossmont overpass. Howland told Officer Davis he had been driving 65 miles per hour and changed from the third to fourth lanes, behind a white truck. Within a couple of seconds, the white truck applied its brakes hard, and Howland was trying to stop when he was rear-ended.
Crippen told Officer Davis that after he pulled into the fourth lane, he followed the car in front of him four or five car lengths behind. When he looked into his mirror to see if he could change lanes, the Impala suddenly applied its brakes very hard, causing him to rear-end the vehicle. Crippen heard skidding and was bumped from behind. Crippen testified there was nothing he could have done to avoid the accident.
Wallace told Officer Davis she was driving between 65 and 70 miles per hour when the red car in front of her began braking. She began to brake, and when she saw the red car slow down more rapidly, she applied her brakes harder but could not avoid hitting the car in front of her. Wallace later testified that she was traveling at 70 miles per hour but slowed down as traffic became denser. Wallace's mother testified that Wallace had been driving around 65 miles per hour and slowed to 50 to 55 miles per hour as traffic became denser. She also testified that Wallace was traveling the same speed as the surrounding traffic, about five or six car lengths behind the car in front of them. Wallace began braking and braked hard as soon as they saw brake lights.
The defense accident reconstruction expert opined at trial that Crippen changed lanes directly in front of Wallace, and when Howland made a sudden and unexpected lane change in front of Crippen, Crippen hit his brakes. Wallace likewise hit her brakes. Crippen rear-ended Howland; then Wallace rear-ended Crippen. He also testified that average reaction time is one- and three-quarter seconds, that Wallace was driving with the flow of traffic, and that she did not have sufficient time to avoid hitting Crippen.
Crippen sued Howland and Wallace, alleging negligence and seeking compensation for personal injuries. Wallace denied she was negligent. In her answer, she also alleged eight affirmative defenses, including that Crippen contributed to his injuries (first affirmative defense), that Crippen proximately caused or contributed to his injuries if any (second affirmative defense), and that other individuals were the intervening and superseding, proximate causes of Crippen's injuries (third affirmative defense).
Crippen settled with Howland and dismissed him from the case.
The case was scheduled for trial October 4, 2019, but the court continued trial because Crippen's designated biomechanical expert was unavailable.
On April 21, 2021, Wallace moved orally to exclude the biomechanical testimony, arguing there was no dispute that impact forces in the accident were potentially sufficient to cause injury. Wallace also asked the court to preclude Bloomquist from testifying regarding accident reconstruction because he had done no reconstruction as of October 4, 2019. At a hearing addressing the request, Crippen's attorney told the court that Bloomquist was not designated as an accident reconstructionist and was only designated as a biomechanical expert. Crippen's counsel specified: "Mr. Bloomquist will not be called as an accident reconstructionist. He will only be discussing forces as to his expertise as a biomechanical expert." Counsel also clarified that he would not call to testify the expert he had designated as the accident reconstructionist, Vomhof.
On September 20, 2021, when the court was scheduled to rule regarding whether Bloomquist could testify as a biomechanics expert, Crippen's attorney informed the court that Bloomquist was initially designated as both an accident reconstructionist and a biomechanical expert. The court ruled that Bloomquist could testify regarding biomechanics but could not testify about specific injuries or which injuries would be the result of the accident.
After the close of evidence, Wallace's attorney asked the court to give CACI No. 452, the instruction for sudden emergency. Crippen opposed the request, arguing that Wallace had waived that affirmative defense by failing to raise it in her answer. Wallace's attorney orally moved to amend the answer to conform to the evidence, and the court denied that request as well, acknowledging the sudden emergency defense applied but finding "fundamental fairness" precluded it.
Crippen's attorney also asked the court to prohibit argument regarding sudden emergency. The court denied the request, but it instructed defense counsel: "Don't use 'sudden emergency,' counsel . . . don't say 'emergency' ...." Defense counsel told the court: "My argument is sudden."
In closing arguments, Crippen's attorney argued that if Wallace wanted to prove somebody else caused Crippen's harm, Wallace should have introduced a biomechanical expert to explain that the first collision caused the injury. Crippen's counsel argued Wallace did not do that because she "couldn't find anybody who would come in here and say the forces from that collision actually were the same ones that contributed to this guy's injuries."
Wallace's attorney argued that Wallace was not negligent because she was "in an unavoidable situation that was suddenly caused by the swoop and stop of Howland and exacerbated by the fact that Mr. Crippen cut in front of her also." He concluded his argument by saying, "[I]f you follow the evidence, you follow the law, plaintiff has not met his burden of proving that Annika Wallace was negligent for this accident."
Jurors received instructions on the elements of negligence (CACI No. 400), the basic standard of care (CACI No. 401), plaintiff's comparative fault (CACI Nos. 405 and 3960), reliance on the good conduct of others (CACI No. 411), the definition of substantial factor to demonstrate causation (CACI No. 430), the responsibility of a party when there are multiple causes (CACI No. 431), and the basic speed law, without reference to any specific Vehicle Code (CACI No. 706). They were also instructed that counsels' arguments were not evidence (CACI No. 3925).
After the jury returned a verdict in Wallace's favor, Crippen moved for a new trial. (Civ. Proc. Code, § 657, subds. (1), (6).) Wallace opposed the motion, and the court denied it. Crippen timely appealed.
Crippen filed a motion and an amended motion for a new trial.
DISCUSSION
I.
Sudden Emergency Affirmative Defense
Crippen contends that the court improperly permitted Wallace to argue an unpled affirmative defense. Crippen does not challenge the admission of evidence, only the appropriateness of closing argument. Thus, we consider whether the court abused its discretion in allowing the substance of defense counsel's closing argument. (See People v. Marshall (1996) 13 Cal.4th 799, 854 [court discretion to control scope of closing argument]; see also People v. Nails (1963) 214 Cal.App.2d 689, 693 [court discretion to restrict argument]; see, e.g., Castro v. Morita (1960) 181 Cal.App.2d 534, 538 [court did not abuse discretion refusing permission or closing argument to continue].)
A. Additional Facts
Wallace's attorney argued in closing that Crippen failed to meet his burden because there was no evidence to show Wallace was "following too closely or traveling at an unreasonable rate of speed." The attorney focused on the requirement that Wallace be a "substantial factor" in causing the injury and argued that Howland had created the situation by cutting immediately in front of Crippen. He told the jury that Wallace was, at best, nothing more than a "remote or trivial factor" responsible for harm to Crippen. He interpreted the evidence to demonstrate that Howland had pulled directly in front of Crippen and hit his brakes in a "classic swoop and stop," arguing, "Howland created the whole scenario folks. He cut in front of Mr. Crippen. He then slammed on his brakes immediately. Mr. Crippen then rear-ended his vehicle, the Howland vehicle. And Annika Wallace had no opportunity."
Wallace's attorney also asked the jury to consider why Crippen did not provide testimony from his own accident reconstructionist to refute what Plourd said. He reminded the jury that it could consider the ability of each party to produce evidence and to consider why it provided weaker evidence when it could have provided stronger evidence (CACI No. 203), then commented that there was nothing preventing Crippen from having an accident reconstructionist refute Plourd's testimony. He told the jury he suspected it was because "any accident reconstructionist that they would use would say that Mr. Howland created this situation."
Wallace's attorney told the jury that the critical issue was "who is responsible and who created this situation and whether or not Annika Wallace had any reasonable opportunity to avoid this accident." He pointed out that Wallace merely had to "be a reasonably careful individual. And that's what she was doing. She had her mom sitting right next to her, and she was following traffic at a safe and reasonable distance." In arguing that Wallace was being reasonably careful, her attorney told the jury that Wallace did not have the opportunity to perceive and react to Howland's brake lights because Crippen was between them. Then, when Wallace's attorney asked, "Was Annika faced with a sudden and unexpected situation?" Crippen's attorney interrupted. The court did not respond to the interruption, and Wallace's attorney continued with his argument: "In which someone was in actual or apparent harm of immediate injury? Yes, she was, because of Howland's actions. [¶] Did Annika Wallace create this situation of forcing Mr. Howland to slam on his brakes which then forced Mr. Crippen to slam on his brakes? Absolutely not. She didn't create that situation. That situation was created, unfortunately, by others. And did Annika Wallace act reasonably as a reasonable, careful person would do in a similar situation, even if it's later, you say, awe, maybe she should have done this. Maybe she should have been even further back, 30 car lengths back or 40 car lengths back, or going 45 instead of 55, or whatever. This is a split second type of situation that she did not create, folks." He also argued Wallace was following the basic speed law.
B. Analysis
The elements of the sudden emergency affirmative defense, also referred to as the imminent peril doctrine (Shiver v. Laramee (2018) 24 Cal.App.5th 395, 399 [discussing defense]), are outlined in CACI No. 452: "[Defendant] claims that [she] was not negligent because [she] acted with reasonable care in an emergency situation. Defendant was not negligent if [she] proves all of the following: [¶] 1. That there was a sudden and unexpected emergency situation in which someone was in actual or apparent danger of immediate injury; [¶] 2. That [defendant] did not cause the emergency; and [¶] 3. That [defendant] acted as a reasonably careful person would have acted in similar circumstances, even if it appears later that a different course of action would have been safer."
Wallace's attorney used language from CACI No. 452 in his closing argument. He explained that Wallace was "faced with a sudden and unexpected situation [¶] . . . [¶] . . . [i]n which [she] was in actual or apparent harm of immediate injury . . . because of Howland's actions." He argued that the "situation was created . . . by others," and Wallace "act[ed] reasonably as a reasonable, careful person would . . . in a similar situation," even if later a person might think that Wallace "[m]aybe she should have been even further back, . . . or going 45 instead of 55, or whatever." These word choices mirror the elements of CACI No. 452.
However, other than Wallace's statement that Wallace was "in actual or apparent harm of immediate injury," defense counsel's argument also reflects elements of negligence or one of the affirmative defenses Wallace properly pled. For instance, both the sudden emergency defense and a negligence cause of action require proof regarding whether the defendant failed to act as a "reasonably careful person would." (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1024-1025, quoting CACI No. 401; see Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998 [one must exercise care that person of ordinary prudence would exercise].) Wallace's third affirmative defense alleges that Crippen's or another person's conduct constituted an intervening, superseding cause, which is also related to the element of causation that a plaintiff must prove. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142, 1158 [elements of negligence]; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 773 [must prove causation]; Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.) And the sudden emergency defense requires the defendant to prove someone other than the defendant caused the injuries, and Wallace's first affirmative defense alleged that Crippen's conduct contributed to his injuries.
Defense counsel's arguments challenge whether Crippen met his burden of proving that Wallace acted negligently, as well as whether any affirmative defenses precluded liability. For example, the statement that Wallace was "faced with a sudden and unexpected situation" suggests that Crippen's and/or Howland's conduct caused the chain of events, a component of her first and third affirmative defenses. The argument that Wallace acted as a reasonable, careful person would in a similar situation reflects her position that she was not negligent because she behaved as a reasonably careful person would in the same situation, addressing an element of negligence. And defense counsel's comment that Wallace maybe should have been trailing further behind or traveling more slowly does not mean she was not acting as a reasonable, careful person likewise challenges an element of negligence.
Other arguments that support a sudden emergency defense also reference the elements of negligence or an affirmative defense: Howland's conduct of "swoop[ing] and stop[ping]" to "create[ ] the whole scenario" and defense counsel's comment that the critical issue was "who is responsible and who created [the] situation" challenge causation and support an affirmative defense. Similarly, defense counsel's repeated claim that Wallace was "reasonably careful," both because she did not have the opportunity to perceive and react to Howland's brake lights, and because she was driving with the flow of traffic, "following traffic at a safe and reasonable distance" also addresses an element of negligence.
The court treated the unpled affirmative defense as waived and rejected Wallace's request to instruct the jury with CACI No. 452. Defense counsel did not explicitly reference the sudden emergency affirmative defense, and the jury was not instructed to evaluate the evidence under CACI No. 452. The court did not abuse its discretion by allowing defense counsel to explain how the facts justified a finding of no liability; the jury simply concluded Wallace was not negligent based on the evidence and law presented to it.
II.
Exclusion of Expert Testimony
Crippen contends the court abused its discretion by preventing Bloomquist from testifying about accident reconstruction. We review the admission of evidence, including expert testimony, for an abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)
A. Additional Facts
Crippen originally designated two experts with accident reconstruction experience, Vomhof and Bloomquist. The witness exchange listed Bloomquist as a specialist in biomechanics, including accident and injury causation analysis and accident reconstruction. It indicated that Bloomquist would testify regarding principles of biomechanics and accident reconstruction. At trial call on October 4, 2019, Crippen sought a continuance because Bloomquist was not available.
On April 21, 2021, Wallace's counsel orally moved to exclude Bloomquist's testimony on the basis that the parties were not disputing that impact forces involved were sufficient to cause injury. Wallace also argued that Bloomquist had completed no accident reconstruction as of October 4. The court directed the parties to file motions on the issue, labeling the topic as "a motion to exclude Mr. Bloomquist, who is an accident reconstructionist." Crippen's counsel corrected the court: "I just want to make sure, again, the record is clear. Mr. Bloomquist has not been designated as an accident reconstructionist. [¶] . . . [¶] . . . He's only been designated as a biomechanical expert, ...."
When defense counsel pressed the issue, Crippen's counsel said, "Mr. Bloomquist will not be called as an accident reconstructionist. He will only be discussing forces as to his expertise as a biomechanical expert." He also confirmed that accident reconstruction expert Vomhof would not be called to testify.
Wallace filed a trial brief in which she asked the court to exclude Bloomquist's biomechanical testimony, explaining that Bloomquist had been designated to provide biomechanical information that lacked foundation because it would rely on Vomhof's accident reconstruction testimony when Vomhof was not planning to testify. She argued that Bloomquist should be limited to basing his opinion on evidence obtained as of the original trial call, October 4, 2019, that Vomhof would not be testifying regarding accident reconstruction, and that Bloomquist would therefore not have accident reconstruction information on which to base his biomechanical opinion. In his opposition, Crippen argued that Bloomquist "formed his own opinions based on the evidence in this case-not solely upon the opinion of Plaintiff's accident reconstruction expert."
On September 20, 2021, the court treated Bloomquist as a biomechanical expert and explained what a biomechanical expert could do. It told the parties Bloomquist could testify regarding forces of an impact and how they move the body, but he could not testify to injuries or explain what injuries would be the result of the accident. The court said it was going to allow Bloomquist to testify (regarding forces of an impact and how they move the body) over defense objections, but if defense counsel "need[ed] to, [he] could do a short 402." Defense counsel again argued there was no reason to allow Bloomquist to testify because Wallace was not disputing that her impact caused injury, and the nature and extent of injury required medical testimony. The court noted Wallace's concerns and said "we'll do a[n Evidence Code] 402 [hearing] to make sure there's a good record. [¶] . . . [¶] And we will make sure we lay a good record."
On September 22, 2021, defense counsel again objected to Bloomquist testifying, based on the lack of dispute that there was some injury and because the nature and extent of the injury called for a medical opinion, not a biomechanical one. Defense counsel also argued Bloomquist's testimony lacked foundation, and he quoted Crippen's counsel's statements that Bloomquist would not be testifying about accident reconstruction.
Crippen's attorney told the court, "[W]e only said that we're not calling Mr. Vomhof, who is designated as an accident reconstructionist. On our expert [ex]change, we specifically note that Mr. Bloomquist is going to be testifying as to accident reconstruction as well." He said he had not looked at the original designation when he made the earlier statements, and he used the expert designations to prepare Bloomquist. The court noted that defense counsel objected to all Bloomquist's testimony, and said, "[t]hat's not going to happen."
At trial, Bloomquist testified that he was asked to address biomechanical and accident reconstruction issues, and defense counsel moved to strike the reference to accident reconstruction. The court limited the testimony to biomechanical issues. After that, Crippen's counsel asked Bloomquist to describe how he understood the accident occurred, and defense counsel objected. The court said Bloomquist's testimony was limited to biomechanical evidence and not accident reconstruction. Bloomquist asked the court if he should not testify to his understanding of the details and cause of the accident, and the court said, "That's exactly right. That's up to the jury." Bloomquist testified that the force from Wallace's car was greater than the impact of Crippen hitting Howland. The trial minutes state that the court ruled, "Bloomquist will be allowed to testify as to biomechanics only and not accident reconstruction."
B. Analysis
Crippen contends on appeal that once questioning began at trial, the court "pulled the rug out from under him by unexpectedly stating that it had previously precluded Bloomquist from testifying regarding accident reconstruction." This contention is not consistent with the record.
Wallace asked the court to preclude Bloomquist from testifying regarding accident reconstruction at trial call in October 2019 because Bloomquist had completed no accident reconstruction by that trial date and Crippen had not identified a testifying accident reconstruction expert. Crippen's attorney told the court Bloomquist would not testify as an accident reconstructionist. He repeated that Bloomquist would not testify as an accident reconstructionist three times, once in response to defense counsel asking for clarification on the record as to whether Bloomquist was an intended accident reconstruction witness. In Wallace's trial brief, she argued that Bloomquist should be limited to basing his opinion on evidence obtained as of the original trial call, October 4, 2019, that Vomhof would not be testifying regarding accident reconstruction, and that Bloomquist would therefore have no accident reconstruction information on which to base his biomechanical opinion. In other words, her motion relied on Crippen's representation that there would be no testifying accident reconstructionist.
Crippen's opposition mentioned that Bloomquist was initially designated as an accident reconstructionist, but it also explained that he had "formed his own opinions based on the evidence in the case" and would not be testifying "solely upon the opinion of Plaintiff's accident reconstructionist." Crippen's opposition did not challenge Wallace's understanding that Bloomquist was not testifying as an accident reconstructionist.
When the court ruled on the request to exclude Bloomquist in September 2021, the context of that ruling was that Bloomquist would testify as a biomechanical expert, not as an accident reconstructionist. Up to that point, Crippen's attorney had represented that biomechanics would be the scope of Bloomquist's opinions. Thus, taken in context, the court's offer to conduct an Evidence Code 402 hearing regarded the foundation of the biomechanical opinion, not Bloomquist's expertise in accident reconstruction, despite his initial designation. Crippen's contention on appeal that the court excluded the accident reconstruction expert after ruling that expert could testify misrepresents what occurred. The court did not prohibit Bloomquist from testifying; it simply limited the testimony to biomechanics. And while Crippen now claims that he was surprised that Bloomquist's testimony was limited to biomechanics, given his representations that Bloomquist was a biomechanical expert and would not testify regarding accident reconstruction, we cannot find the court's limitations an abuse of discretion.
III.
Motion for New Trial
Attorney misconduct can be an irregularity in the trial and serve as a basis for a new trial. (Code Civ. Proc., § 657, subd. 1; City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 870.) "[A] trial judge is accorded wide discretion in ruling on a motion for new trial and . . . the exercise of this discretion is given great deference on appeal." (City of Los Angeles, at pp. 871-872.) In reviewing an order denying new trial, we review the entire record to make an independent determination regarding whether the error was prejudicial. (Id. at p. 872; Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 296, fn. 16 (Bigler-Engler).)
A claim of attorney misconduct usually requires a timely and proper objection, accompanied by a request for admonition to preserve it for appeal. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794-795 (Cassim); Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 319; Bigler-Engler, supra, 7 Cal.App.5th at p. 295.) If the court's action is not requested, the alleged misconduct is not considered on appeal unless an admonition to the jury would have been inadequate. (Cassim, at pp. 794-795; Bigler-Engler, at p. 295; Horn v. Atchison, T. &S. F. R. Co. (1964) 61 Cal.2d 602, 610-611 (Horn); Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148 (Garcia).)
Crippen contends the court erred when it denied his motion for a new trial based on a claim of prejudicial surprise resulting from defense counsel's "repeated misconduct." This contention relies on two main claims of misconduct: (1) defense counsel telling the jury that Crippen offered no accident reconstruction evidence when there had been evidence excluded; and (2) Crippen's discussion of elements of the sudden emergency defense during closing arguments.
Crippen argues in his reply brief that Wallace failed to comply with the Discovery Act in order to surprise him with the sudden emergency affirmative defense at trial, and he asks us to grant a new trial on this basis. Wallace's motion to strike this argument is granted. It is not proper for an appellant to raise new points in a reply brief (Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1144), and we will not consider the argument here (see Neighbours v. Buzz Oats Enterprises (1990) 217 Cal.App.3d 325, 334, fn. 8).
We first address Crippen's claim that he suffered prejudice from defense counsel's representation that he simply failed to call an accident reconstructionist to refute Plourd's testimony and that Crippen "could have brought in someone to refute [Plourd's testimony], and [he] elected not to do so."
Crippen fails to explain why an admonition would have been inadequate. (See Cassim, 33 Cal.4th at pp. 794-795; Bigler-Engler, supra, 7 Cal.App.5th at p. 295; Horn, supra, 61 Cal.2d at pp. 610-611; Garcia, supra, 204 Cal.App.4th at p. 148.) Instead, he contends in his reply brief that objecting would have been futile. He argues that the court was aware that it had excluded Bloomquist from testifying regarding accident reconstruction. But he does not explain why the court's knowledge that it excluded Bloomquist's accident reconstruction testimony means the court would not have sustained an objection. If anything, the court's order excluding evidence suggests it would be more likely to sustain the objection because the court was aware that the evidence existed. Because Crippen does not justify the failure to object or explain why admonition would have been inadequate, he has forfeited this claim of misconduct. (Cassim, 33 Cal.4th at pp. 794-795; Bigler-Engler, supra, 7 Cal.App.5th at p. 295.)
Even were we to conclude Crippen had not forfeited this argument, we would not find prejudicial error here. Crippen relies on Jackson v. Park (2021) 66 Cal.App.5th 1196 (Jackson) for the proposition that reference to excluded evidence is misconduct that warrants a new trial. In Jackson, defendant Park struck the left-side rear of a loaded trailer that Jackson was hauling around 3:30 a.m.; Jackson filed a civil suit alleging negligence. (Id. at pp. 1199-1200.) Park moved to exclude evidence of the defendant's blood alcohol content, arrest, and conviction, and the court granted his motion. (Id. at p. 1200.) In closing arguments, Park's attorney argued that there was no evidence that alcohol caused Park to hit the trailer, and that there was no evidence of an arrest, of Park's blood alcohol content (BAC), or of a conviction. (Id. at p. 1205.) He also displayed a demonstrative exhibit that stated there was" 'zero evidence of arrest, BAC, or [c]onviction." (Id. at p. 1206.) Park's attorney further argued that Jackson failed to subpoena coworkers when he could have and referenced interrogatories that were not admitted as evidence. (Id. at pp. 1207-1208.) Jackson's attorney repeatedly objected throughout the argument, and, outside the presence of the jury, the court told Park's attorney some of his arguments were improper. (Id. at p. 1209.) The court told the jury that the witnesses that Park's attorney had accused Jackson of failing to call were equally available to both sides, and that argument should be disregarded. (Ibid.) After the jury returned a verdict in Park's favor, the court granted Jackson's request for a new trial based on multiple incidents of misconduct that could not be cured by its admonitions. (Id. at pp. 1210-1211.) The court concluded the conduct was prejudicial. (Id. at p. 1211.)
The court of appeal affirmed the trial court's decision. It explained that defense counsel's argument that there was no evidence that alcohol caused the accident and zero evidence of BAC, arrest, or conviction was improper because counsel had "assert[ed] or impl[ied] facts not in evidence that counsel kn[e]w[ ] excluded evidence could refute." (Jackson, supra, 66 Cal.App.5th at p. 1214.) It also concluded defense counsel had "grossly misrepresented the court's admonition and improperly infused defense counsel's misleading argument with the authority of the court." (Ibid.) Further, it found that defense counsel disregarded the court's admonitions and rulings throughout the closing argument, and his conduct was improper: "It was improper to argue evidence not in the record, improper to refer repeatedly to that evidence after the court ordered counsel to stop, and improper to argue with the court in front of the jury in a transparent effort to highlight the evidence the court had instructed counsel not to mention." (Id. at p. 1216.)
Although there are some similarities between Jackson and the present case, factual differences lead to a different result here. First, defense counsel's misrepresentations here were not as egregious as the ones in Jackson. In Jackson, the defense attorney was aware of both the existence and substance of the excluded evidence. Despite knowing there was evidence of a BAC, arrest, and conviction, he told the jury that evidence did not exist. (Jackson, supra, 66 Cal.App.5th at pp. 1205-1206.) Here, defense counsel knew Crippen had attempted to introduce accident reconstruction evidence at trial, but until trial he was unaware the evidence existed because Crippen's attorney repeatedly represented that there would be no accident reconstruction testimony. Thus, when he argued that nothing prevented Crippen from having an accident reconstructionist to refute Plourd's testimony, he knew his request to exclude that evidence prevented it. However, it is also true that Crippen could have designated Bloomquist as an accident reconstructionist or designated Vomhof as a testifying expert witness, but he chose not to do so.
Second, defense counsel in Jackson engaged in misconduct that did not occur here. In Jackson, the plaintiff's attorney repeatedly objected to defense counsel's portrayal of the evidence, and the court repeatedly sustained those objections. (Jackson, supra, 66 Cal.App.5th at p. 1209.) The court admonished the misconduct and directed the jury not to consider it. (Id. at p. 1210.) In response, defense counsel misrepresented the admonishment and then infused his improper argument with the court's authority. (See id. at p. 1216.) In contrast, here Crippen's attorney never made a timely and proper objection to defense counsel's statements about the missing evidence, and he never requested an admonition.
Crippen's attorney told the jury in his rebuttal that defense counsel had asked the court if Crippen was going to call an accident reconstructionist and "found out we're not." Although he made this argument in the context of explaining that Wallace had unfairly changed her case to a theory of "sudden emergency," it nonetheless lent credence to Wallace's argument that there was no accident reconstruction evidence to refute Plourd's views. Wallace's attorney objected to Crippen's argument as misstating the evidence and facts, and the court overruled that objection.
Finally, other conduct during closing arguments reduced the likelihood of prejudice. Just as Crippen failed to properly identify a testifying accident reconstruction expert, Wallace failed to identify a biomechanical expert to challenge Crippen's expert's testimony. Crippen's attorney pointed this out in closing arguments when he told the jury that defense counsel should have brought in a biomechanical expert to explain the collision with Howland caused the injuries, but "[t]hey didn't do that. Why not? Why not? [¶] Tell you why not. Same thing. They couldn't find anybody. Couldn't find anybody who would come in here and say the forces from that collision actually were the same ones that contributed to this guy's injuries."
We acknowledge that this reference is different from defense counsel's arguments because there is nothing in the record before us that indicates Wallace introduced a biomechanical expert into the case, or that she ever planned to call one, while Crippen apparently had evidence from an accident reconstructionist that was excluded. Thus, Crippen's attorney made the argument about the failure to produce any evidence, while Wallace's attorney treated excluded evidence as non-existent. Still, the result was that each party pointed to the lack of testimony to contradict his or her expert's opinion. Crippen does not explain how these arguments about who produced which expert evidence during the trial improperly swayed the jury or made it more probable that he would have achieved a more favorable result.
Finally, as we detailed ante, defense counsel did not engage in misconduct during closing arguments based on his references to Wallace responding to the sudden or unexpected conduct of others. His arguments addressed elements of negligence and Wallace's properly pled affirmative defenses. Accordingly, Crippen should not have been surprised by them. Moreover, Crippen had an opportunity to challenge Wallace's argument by arguing the situation was not "sudden" or "unexpected," and he did so when he argued that Wallace should have been more cautious and kept a high visual field because of all the traffic. Because we do not find that this argument evidences misconduct or surprise, we do not reach the question of whether there was prejudice to Crippen as a result.
DISPOSITION
The judgment is affirmed. Crippen to pay costs on appeal.
WE CONCUR: McCONNELL, P. J., DO, J.