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Redevelopment Agency of City of Long Beach v. Thach

California Court of Appeals, Second District, First Division
Sep 15, 2008
No. B187379 (Cal. Ct. App. Sep. 15, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC311183. Michael Stern, Judge.

Hahn & Hanh, Don M. Anthony and Todd R. Moore for Plaintiff and Appellant.

Century Law Group, Karen A. Larson, and Daniel A. Woodford for Defendant and Appellant.


ROTHSCHILD, J.

Zealously advocating on behalf of a client is appropriate. Repeatedly engaging in intemperate and unprofessional conduct in order to prejudice the jury in favor of one’s client is not. In this case, defense counsel’s misconduct at trial so prejudiced the plaintiff that the law requires us to reverse the judgment and order a new trial.

FACTS AND PROCEEDINGS BELOW

In 2000, Souvanna Thach purchased a convenience store in a high-density area of Long Beach for $38,000. At the same time, he entered into a five-year lease for the real property on which the store was located. Thach renamed the store Sunrise Market, and over the next four years he repainted the exterior, increased the inventory, and installed a slushy machine. Additionally, Thach encouraged customer loyalty by selling items specifically requested by individual customers and occasionally offering free coffee, fried rice, and noodles. Thach modeled the market after a village store previously owned and operated by his wife in Cambodia.

In February 2004, the Redevelopment Agency of the City of Long Beach (the Agency) condemned the real property on which Sunrise Market was located in order to build affordable housing for the community’s residents. The Agency paid Thach $33,500 for the store’s fixtures and equipment, and $9,095 for its perishable inventory. The parties could not agree on the value of goodwill. The case proceeded to trial on only that issue.

“‘[G]oodwill’ consists of the benefits that accrue to a business as a result of its location, reputation for dependability, skill or quality, and any other circumstances resulting in probable retention of old or acquisition of new patronage.” (Code Civ. Proc., § 1263.510, subd. (b).)

The parties presented two different versions of Sunrise Market’s goodwill value through expert testimony. The Agency’s expert witness, Aaron Amster, described Sunrise Market as a typical family-owned convenience store that offered nothing unique in the way of service or inventory. It had limited capacity for growth and faced direct competition from several other markets located within a half-mile radius. Amster testified that the store’s profitability was “extremely low” and that Thach would have fared better economically working at a minimum wage job than operating the store for four years. Even after making several assumptions favorable to Sunrise Market in his calculation of goodwill and using two different evaluation methods (the “discretionary cash flow multiplier” method and the “excess earnings” method), Amster concluded that the store had no goodwill value.

Thach’s expert witness on goodwill value, Chris Pedersen, testified that Sunrise Market was a “very unusual business” because Thach modeled it after a Cambodian “village market.” Because Sunrise Market offered a unique and rewarding shopping experience, it consistently increased sales during its four years in operation, and nearby stores with similar products posed limited competition. Using the “cost to create” method of evaluation, Pedersen valued Sunrise Market’s goodwill at $231,797.

In its opening brief on appeal, the Agency argued that the trial court abused its discretion by permitting Pedersen to testify given his use of the “cost to create” method to evaluate Sunrise Market’s goodwill. In its reply brief, the Agency abandoned this issue in light of Inglewood Redevelopment Agency v. Aklilu (2007) 153 Cal.App.4th 1095, which concluded that expert testimony based on the “cost to create” method to evaluate the goodwill of a condemned auto repair shop was properly admitted at trial. The Aklilu court reasoned that the “cost to create” approach “is a permissible means by which to value goodwill under section 1263.510 where . . . a nascent business has not yet experienced excess profits but clearly has goodwill within the meaning of the statute and experiences a total loss of goodwill due to condemnation of the property on which the business is operated.” (Id. at p. 1102.)

The jury found that Thach was entitled to $215,000 for loss of goodwill. The trial court denied Thach’s motion for litigation expenses, including reasonable attorney fees, and set the interest rate on his judgment at the “apportionment rate,” defined by Code of Civil Procedure section 1268.350.

The Agency timely appealed from the judgment in favor of Thach, and Thach timely cross-appealed from the trial court’s post-trial rulings.

Because we reverse and order a new trial, we need not reach Thach’s cross-appeal challenging the trial court’s order denying litigation expenses and setting the judgment interest rate at the statutory apportionment rate.

DISCUSSION

I. ATTORNEY MISCONDUCT

The sole issue raised by the Agency’s appeal is the misconduct of Thach’s counsel (Counsel).

A reviewing court will reverse a judgment on the basis of attorney misconduct “only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. [Citation].” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 (Cassim).) Whether attorney misconduct has resulted in a miscarriage of justice depends on our “view of the overall record, taking into account such factors, inter alia, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge’s control of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances. [Fn. omitted.]” (Sabella v. Southern Pacific Co. (1969) 70 Cal.2d 311, 321 (Sabella).)

Although each case ultimately turns on its unique facts, prior decisions provide guidance on what constitutes prejudicial conduct. For example, an attorney commits misconduct by asserting unproved facts and using her “assertion[s] as a basis of bias-incitement.” (Love v. Wolf (1964) 226 Cal.App.2d 378, 389 (Love).) Therefore, the courts condemn, “‘did you know that’ questions designed not to obtain information or to test adverse testimony but to afford cross-examining counsel a device by which his own unsworn statements can reach the ears of the jury and be accepted by them as proof . . . .” (Love, supra, 226 Cal.App.2d at 390.) Similarly, during closing arguments, counsel “may not assume facts not in evidence or invite the jury to speculate as to unsupported inferences. [Citations.]” (Cassim, supra, 33 Cal.4th at p. 796.) The Rules of Professional Conduct reinforce these prohibitions. Thus, an attorney “shall not assert personal knowledge of the facts at issue, except when testifying as a witness.” (Rules Prof. Conduct, rule 5-200, subds. (B) and (E).)

Attempts to prejudice the jury against a party by irrelevant references to the “defendant’s wealth and plaintiff’s lack of resources” are “improper and to be condemned.” (Sabella, supra, 70 Cal.2d at p. 319; see also Hoffman v. Brandt (1966) 65 Cal.2d 549, 552-553 (Hoffman) [“Justice is to be accorded to rich and poor alike, and a deliberate attempt by counsel to appeal to social or economic prejudices of the jury, including the wealth or poverty of the litigants, is misconduct where the asserted wealth or poverty is not relevant to the issues of the case”].) Counsel may not make “personally insulting or derogatory remarks” directed at opposing counsel’s motive or character. (Cassim, supra, 33 Cal.4th at p. 796.) For instance, when the court has sustained an objection to certain evidence, counsel may not attempt to circumvent the court’s ruling by arguing to the jury that opposing counsel improperly kept the evidence from being admitted. Finally, as the court in Sabella aptly stated, “[i]ntemperate and unprofessional conduct by counsel” “runs a grave and unjustifiable risk of sacrificing an otherwise sound case for recovery” and could “result in a reversal.” (Sabella, supra, 70 Cal.2d at p. 321.)

Although we do not identify every instance of Counsel’s prejudicial misconduct, the incidents we describe below are more than sufficient to demonstrate that the case must be retried. Counsel’s misconduct falls generally into four overlapping categories: First, she repeatedly argued highly prejudicial facts to the jury that were irrelevant, without evidentiary support, and, in some cases, untrue. In doing so, she asked “did you know that” questions in order to present as facts her own unsworn statements, argued against opposing counsel’s objections in front of the jury in order to put before the jury facts that were not in evidence, and claimed personal knowledge of facts. Second, even though the trial was strictly about the goodwill value of Sunrise Market, Counsel sought to prejudice the jury in favor of her client and against the Agency by characterizing her client’s wife as a Cambodian war victim, her client as a supporter of the United States in Cambodia, and her client’s family as poor and possibly made destitute by the Agency’s action. At the same time, she groundlessly and irrelevantly portrayed the Agency as a callous governmental entity evicting her client for the benefit of private developers and business interests, when the evidence presented showed that the Agency intended to use the land to build affordable housing for the community. Third, when the court sustained evidentiary objections made by the Agency, Counsel attempted to circumvent the court’s rulings by arguing to the jury that the Agency was improperly keeping highly relevant evidence from being admitted. And fourth, Counsel frequently ignored the court’s evidentiary rulings and disobeyed the court’s pretrial order prohibiting both attorneys from arguing evidentiary objections in front of the jury.

Before the start of trial, the court told counsel for both parties: “You will have an opportunity to create a record later on, as necessary, when you are out of the hearing of the jury. . . . I will rule simply, ‘overruled,’ ‘denied,’ ‘sustained’ on your objections as they come up.” This is consistent with Local Rule 8.41 of the Los Angeles County Superior Court, which states in relevant part that arguments on evidentiary objections “should be held outside the hearing of the jurors” and that “[c]ounsel wishing to argue any matter of law shall request the court for leave to argue outside the hearing of the jurors.”

Counsel’s campaign to prejudice the jury against the Agency began in her opening statement when she told the jury that because the Agency took Thach’s store “[h]e had to sell his house.” Counsel never offered any evidence to support this claim. More importantly, she had to know that the court would never allow such evidence to be introduced because the sole issue in the case was the value of the store’s goodwill. The only reasonable conclusion we can draw is that Counsel made the statement in bad faith in an attempt to prejudice the jury against the Agency and in favor of Thach.

Even though the trial was limited to Sunrise Market’s goodwill value, Counsel told the jury in her opening statement that the Agency had condemned the real property on which Sunrise Market was located in order to turn the land over to developers who would build other businesses. She represented to the jury: “Notwithstanding that the government wasn’t putting any money -- the Agency wasn’t putting any money into the area because they had plans to give it to another business.” Likewise: “What you are not going to see is who’s benefitting from the government policy. He’s not here, the developer . . . . And what Mr. Thach is going to be telling you is that the developer never came to negotiate with him.” She continued: “What were the benefits of [the location]? Must have had some value. The Agency took it to give to another business . . . .” These representations were not only irrelevant, they were untrue. The only evidence in the case showed that the Agency intended to use the seized land to build affordable housing for the surrounding community. Counsel’s representations tainted the entire trial by raising the jurors’ suspicions at the outset of the trial about whether the Agency was benefitting big business.

During the presentation of evidence, Counsel asked questions intended as vehicles for prejudicial accusations. For example, she used a question of the Agency’s expert witness to paint the Agency as a kind of bully by characterizing its action as an “eviction” of her clients. (Question: “And you projected out to 2004 -- up through to 2004 when Mr. Thach was evicted by the government . . . .” (Italics added.) Similarly, she sought to prejudice the jury by making a factual assertion in the form of a question as to the purported financial effect on her client and his family of the condemnation. (Question: “And you realize that this family business supported four children and a house with a mortgage. Correct?”) In that one question, Counsel violated two fundamental rules of conduct: She irrelevantly informed the jury that her clients were poor and introduced her own unsworn statement as proof.

During her re-direct examination of Thach’s expert, Counsel flouted four elementary rules of proper trial conduct -- presenting evidence in the form of counsel’s own statements, offering clearly inadmissible evidence, arguing against the trial court’s rulings in front of the jury, and presenting evidence after the court had ruled it inadmissible -- when she attempted to introduce a ruling by a court in an unrelated case allegedly supporting Pedersen’s evaluation approach in that case. When the Agency objected on hearsay grounds and the trial court sustained the objection and struck the expert’s answer, Counsel argued with the trial court in front of the jury and then introduced inadmissible evidence through her own testimony: “Well, your Honor. I have that case in front of me. May I pull the case and put it up on the -- ” The trial court responded “no.” In defiance of the trial court, Counsel continued: “It’s a published case. You can take judicial notice of Second District Court of Appeal[]. A case, Leslie v. The Department of Transportation, is one of the foremost seminal cases in the area of eminent domain cited in case after case, particularly in cases on appeal, which I do as an expert, your Honor.” In her closing argument, Counsel again referred to the Court of Appeal case and added another violation of the rules of trial conduct, accusing opposing counsel and the trial court of improperly excluding relevant evidence: “And then the second one that the Court of Appeal[] put back in, but he wouldn’t allow -- remember, I was trying to talk about that case. ‘Objection.’ We don’t want to hear about the Court of Appeal[] upholding based upon his experience as a broker. Right? That’s not relevant.”

Counsel again violated the rule against offering her own unsworn statements as evidence when she told the jury during closing argument that the author of a particular book, who she claimed supported her client’s theory of goodwill valuation, “is one of the most [e]minent valuation experts in the country” and then, perhaps even more egregiously, that “the IRS agrees with this approach.” Neither the book, the author, nor the IRS position was in evidence.

Before trial, the Agency moved in limine to preclude any evidence pertaining to: “[Thach] and his family’s persecution in Cambodia, including but not limited to the confiscation of any of their real or personal property or assets by that government” and “their physical, emotional and/or mental health condition, including the effect of the condemnation of their leasehold interest on their personal debts, and/or their present living conditions.” When the trial court indicated that it would grant this motion, Counsel sought leave to “talk[] about stuff that’s very important to our case, and that is the village concept. They had a village store.” She represented to the court that she would not mention that Thach and his wife were “persecuted in Cambodia” and that she would not elicit any evidence about the impact the condemnation had on Thach and his family. The trial court granted the Agency’s motion in limine with limited permission for Counsel to offer evidence that Thach and his wife came from Cambodia and that they had a family-owned market there. The court specifically instructed Counsel not to refer to “emotional distress, physical reaction, or something that evokes sympathy based on the fact that they may have fled their country” because of persecution.

Despite the court’s ruling, Counsel referred to Thach’s military service in Cambodia, the Cambodian government’s seizure of his wife’s property, and, as noted above, the effect of the Agency’s condemnation on his family’s finances, all designed to elicit sympathy toward Thach and his family. In her opening statement, Counsel stated: “He came over here from Cambodia. Okay? He was in the military over there. Worked on the side of the United States at that time. Married to Mrs. Thach after her husband was killed . . . . And his wife wanted a store as she had in Cambodia before the Cambodians took it, the Cambodian government.” She then went on: “And every one of his kids, children, worked in the store. It supported the family. It supported the mortgage.” She told the jury that Thach had to sell his house, that he started all over when he left Cambodia, “and he will be starting again.” During Counsel’s cross-examination of the Agency’s expert, she again ignored the court’s ruling by asking him: “Okay. And you realize that this family business supported four children and a house with a mortgage. Correct?” Likewise, during her direct examination of Thach, Counsel asked him about his prior military service and whether he fought “in a war there with the United States.” This prompted the trial court to state: “It’s totally irrelevant, [Counsel]. You have been instructed not to go into this material that has nothing to do with the valuation of goodwill. And that was a court order.”

In the respondent’s brief, Thach contends that Counsel’s “inquiries were legitimate and highly relevant to rebut the Agency’s contention at trial and here, [that] the Thaches had a business with minimal value.” But the trial was strictly about the goodwill value of Sunrise Market, and Thach fails to explain how evidence pertaining to his military service, the death of his wife’s first husband, and his personal finances relates to goodwill value.

On numerous occasions after the trial court sustained an evidentiary objection made by the Agency, Counsel would either ignore the ruling or attempt to circumvent the ruling by arguing to the jury that the excluded evidence was relevant and should have been presented to them.

The Agency’s expert, Amster, testified that he used the “excess earnings” and “discretionary cash flow” methods to evaluate Sunrise Market’s goodwill because the “cost to create” method had “no application whatsoever to the valuation of goodwill in a business.” According to Amster, in all his years of appraisal, he had “never ever seen the cost to create method used to value goodwill.” Counsel attempted to impeach Amster by asking him about a book authored by Glenn Desmond. Amster testified that he had worked with Desmond more than 20 years ago and had not relied on Desmond’s book “for years.” Outside the jury’s presence, the court ruled that because Amster had not relied on Desmond’s book, Counsel could not question him on the contents of the book. Ignoring this ruling, Counsel asked Amster on cross-examination: “And doesn’t Mr. Desmond specifically in his book recommend approaches that are not tied into excess earnings if you can -- if you can find a unique way of using the data that you have when you know that a business has profits or is profitable or has patronage?” The Agency’s counsel objected and the trial court sustained the objection. Counsel pressed on, asking: “Doesn’t Mr. Desmond unequivocally say that in a business -- in a business, not a product operation or a trademark or a patent, but in a business that has no excess earnings, that you can use the cost to create approach to determine the value of goodwill?” Again, the Agency’s counsel objected and, again, the court sustained the objection.

Counsel returned to the subject of the Desmond book during her closing argument when she argued: “When I questioned [Mr. Amster] from a book by his own mentor, Mr. Desmond, Glen Desmond, the guy -- the Government -- Agency objected. Wouldn’t even allow me to read that part of Mr. Desmond’s book that talks about when you can use the cost to create approach when there’s no excess earnings, and how the IRS agrees with that approach.” The Agency’s counsel objected, the trial court started to rule, and Counsel interrupted the court midsentence and, addressing the jury, stated: “They didn’t want you to know that.” After the trial court admonished the jurors to consider only evidence that was presented to them in their deliberations, Counsel continued with “And, again they object.” Counsel’s questions and argument were improper. Although there was no evidence that an authoritative figure, as well as the IRS, agreed with Sunrise Market’s expert’s theory of goodwill, it is reasonably probable that the jury entered its deliberations believing the Agency’s counsel improperly kept this information from them.

Because the trial was strictly about goodwill value, and not about the costs of relocation, the court ruled that Counsel could not call the Agency’s relocation consultant, Peter Rhoad, as a witness to testify that Thach would have to “start all over” by purchasing a new business, which Counsel claimed would cost anywhere from $300,000 to $600,000. Despite that ruling, Counsel, in her opening statement, told the jury that Rhoad would testify that Thach “would have to start all over” with a new business, which could cost anywhere from $200,000 to $300,000 to purchase. Counsel did not call Rhoad as a witness. Nor did she make her opening statement about Rhoad’s testimony in a good faith belief it would be admissible. She knew from the court’s pretrial ruling that Rhoad would not be allowed to testify about the alleged costs to relocate the market.

The court also stated: “You can revisit the issue if you want, but Mr. Rhoad’s not going to come in and testify to those things as your first witness unless he has something regarding the value of goodwill.”

The matter of Rhoad’s nonexistent testimony did not end with Counsel’s opening statement. She surfaced the subject again in her closing argument, this time in an even more pernicious manner. Counsel stated to the jury: “That’s why we only ask for the loss of goodwill. Okay? Because usually [you do] survive. You are able to relocate. And then you have a loss of customers. Here, he lost everything. And no one from the Agency helped him. They didn’t even go into his business. They wouldn’t even talk to him. And Mr. Rhoad, who they didn’t want to testify, even told him ‘You are going to have to start all over.’ They wouldn’t even help him.” (Italics added.) Going into its deliberations, the jury was left with the impression that the Agency had improperly prevented a relevant witness from testifying in favor of Thach.

During Counsel’s direct examination of Thach’s expert, Pedersen, she asked him an irrelevant question about whether he had attended meetings in which agencies passed “resolutions of necessity.” The Agency’s counsel objected based on relevance, and the trial court sustained the objection and struck the answer. In front of the jury, Counsel challenged the trial court’s ruling and accused the Agency’s development project manager, Vincent Abe, of perjury: “Your honor, this -- we are offering Mr. Pedersen as a rebuttal witness to the testimony that was offered yesterday that a community voted for this. Communities never vote for projects, your Honor. And we are going to show through Mr. Pedersen that what Mr. Abe said was untrue. We have the right to rebut something that is blatantly false.” This conduct was not merely unreasonably inflammatory, it violated the court’s pretrial order and the local rule regarding arguing evidentiary objections in front of the jury. Counsel’s conduct forced the court to stop the trial, excuse the jury for a break, and again instruct Counsel not to argue in the presence of the jury. Once the jury reconvened, Counsel resumed her improper conduct, stating: “Okay. Thank you, your Honor. I forget what transpired, but you sustained the objection to me trying to get him to talk about -- to contradict Mr. Abe? You are not going to allow him to testify, is that the ruling?” (Italics added.)

During her closing argument, Counsel also accused the Agency of improperly trying to hide the “cost to create” method of evaluation from the jury. She argued: “Believe me, if it wasn’t permissible, we wouldn’t be here. My expert would have been thrown out. If you don’t think the Agency tried, with all the objections that they made . . . throughout this period of time, then you have been in another courtroom.” Counsel then accused the Agency of trying to hide the definition of fair market value from the jury, even though the trial court had ruled that Counsel could not show the jury that definition during trial. “Now here’s the definition of goodwill from the statute. I wanted to show it to you, as well as the fair market value. Do you remember that? Both experts said they used it. Both experts said they’re obligated to do so. And what did the Agency do when I wanted to show you? As if it was some kind of mystery, ‘objection.’ ‘Don’t show it to them.’ ‘Objection.’ ‘Don’t show it to them.’” Counsel’s conduct compelled the court to explain to the jury: “And I sustained every one of those objections. Let’s move on [Counsel], with proper argument.”

Counsel ended her closing argument with the following: “I’m confident that you will do the right thing, and not be persuaded that just because I was louder than them. [Au] contraire. I was very quiet. I’m not the one that objected to every piece of relevant evidence that you should have heard.” (Italics added.) In sum, Counsel’s misconduct gave the jury the unfounded impression that the Agency’s attorneys were improperly hiding key evidence.

Counsel used her closing argument to accuse the Agency of unfair, improper, and even un-American motives although the Agency’s motives were patently irrelevant to the determination of Sunrise Market’s goodwill value. She argued: “Isn’t it just compensation under the statute to award people whose property that you have taken and shut down in a neighborhood that you have given to some other business? To give him his investment? Isn’t that what America is about? We are going to tell him you get zero?” She continued: “They wouldn’t even help him. That’s how you reward an immigrant that came over here and did the best he could to work in the best neighborhood? Fortunately, that’s not the law. This is the United States of America the last time I looked.” And: “All of these attorneys. All of these experts. Can you -- all of that money. The part -- two partners from one of the oldest firms around. The managing partner -- the owner of an operation with all those appraisers, all of these employees in the city of Los Angeles and San Francisco to testify against this little business that’s worthless. To tell you it’s worth zero. Man, that’s a lot of noise . . . it’s a lot of noise to say it’s worthless.”

These questions, statements, and arguments provide just a few examples of many in which Counsel irrelevantly characterized the Agency as a nefarious governmental agency bent on evicting hard working immigrants and denying them just payment in order to line the pockets of big business. The record demonstrates that Counsel intended to vilify the Agency for the purpose of engendering bias.

II. PREJUDICE AND WAIVER

The Agency argues the cumulative effect of Counsel’s misconduct was prejudicial. We agree.

Zeal for a client, rich or poor, is no excuse for misconduct. (Hoffman, supra, 65 Cal.2d at pp. 552-553.) Where, as here, an attorney’s misconduct is so pervasive throughout trial, courts examine the overall misconduct, and not isolated incidents, to determine whether it is reasonably probable that absent the misconduct, the appealing party would have obtained a more favorable result. (See, e.g., Garden Grove School District v. Hendler (1965) 63 Cal.2d 141, 143 [court held misconduct was “prejudicially erroneous” where attorney “conducted himself in a manner which is completely incompatible with the dignity and decorous conduct of a judicial proceeding” by “alluding to facts not in evidence,” “making certain representations of fact . . . which he neglected to fulfill,” “resort[ing] to insulting and derogatory characterizations of defendants,” and “impugn[ing] the motives and purpose of defendants”]; Simmons v. South Pacific Transportation Co. (1976) 62 Cal.App.3d 341, 351-357 (Simmons) [counsel accused defendant of cheating, stealing, and perjury in front of the jury, gratuitously emphasized the wealth and power of the defendant and the vulnerability of the plaintiff, implied certain facts without evidentiary support, and pursued the same inquiries in the face of repeatedly sustained objections; court held that even though some instances of misconduct were of “minor importance,” the totality of the “flagrant and repeated instances of misconduct” deprived the defendant of a fair trial and called for a reversal of the judgment]; Kenworthy v. State of California (1965) 236 Cal.App.2d 378, 397-399 [counsel made unfounded accusations of evidence suppression by opposing party, made self-serving statements and gratuitous remarks in front of the jury, attempted to introduce irrelevant evidence in the jury’s presence, and made arguments “replete with insinuations, none of which had any support in the record;” court held that misconduct had prejudicially influenced the jury, reasoning: “[t]here was a deliberate attempt to administer poison, no single dose of which was lethal but with an accumulative effect inevitable and realized”].)

Here, the cumulative effect of Counsel’s flagrant and pervasive misconduct deprived the Agency of a fair trial and was undoubtedly prejudicial.

As the trial court reminded Counsel repeatedly, the sole issue before the jury was what goodwill value, if any, Sunrise Market possessed. But Counsel, through her misconduct, turned the trial into a full frontal attack on the Agency, its representatives and counsel, and its motivations for condemning the land on which the market was located. Her statements to the jury regarding her client’s experiences in Cambodia, that the Agency’s condemnation caused Thach to have to sell his home, and that the Agency had condemned the land for the benefit of a private developer and other businesses were indisputably irrelevant and prejudicial.

In short, Counsel’s conduct probably inflamed the jury’s bias against the Agency and in favor of Thach. We conclude that it is reasonably probable that absent Counsel’s conduct, the Agency would have obtained a more favorable result at trial.

Counsel’s conduct outside the presence of the jury was likewise improper. Some examples include: (1) When the trial court ruled that she could not show the jury an exhibit which was not admitted into evidence, she threatened to do it anyway, stating: “I’m going to show [the exhibit] your honor.” When the trial judge informed her that showing the exhibit might warrant a mistrial, she said: “Then I will do it. And then I will do it, your honor.” The trial court said: “[Counsel], you are being impudent, you are being disrespectful, you are violating local rules, and you are causing me to come to the edge of my patience.” (2) When the trial court asked Counsel to list the order of her witnesses, she retorted: “Why does it matter? What if I flip them tomorrow? I’m not going to be allowed? What if I say Mr. Thach first and Mr. Pedersen second and then put Mr. Pedersen on first? Is that going to destroy their ability to prepare?” (3) Counsel used the word “pissed” in open court, which prompted the trial court to remind her “[t]hat is not the type of language that we use in court.” (4) Counsel compared opposing counsel to “Twiddle Dee and Twiddle Dumb.” (5) While addressing the court, Counsel raised her voice in such a manner as to prompt the court to say: “It’s not necessary for you to scream at the top of your lungs.”

Finally, we reject Thach’s argument that the Agency waived its right to claim attorney misconduct by failing to ask the trial court for a jury admonition or a directed verdict at the conclusion of trial. The Agency objected vigorously to Counsel’s misconduct throughout trial, and the trial court sustained many but not all of the objections. Given the severity and pervasiveness of Counsel’s misconduct, an admonition would have been futile. (Love, supra, 226 Cal.App.2d 378 at p. 392 [“As any experienced trial lawyer knows, multiple objections have a tendency to alienate a jury’s goodwill . . . . As for curing error by admonishing a jury, while this may be possible when error is isolated and unemphasized, an attempt to rectify repeated and resounding misconduct by admonition is, as counsel here has expressed it, like trying to unring a bell”]; see also Gackstetter v. Market St. Ry. Co. (1933) 130 Cal.App. 316, 326 [where acts of misconduct are “so numerous, and their tendency so manifestly prejudicial,” “it is doubtful whether a harmful result could have been prevented” by an admonition].) Even if the Agency did not object or seek an admonition to cure every single instance of misconduct, Counsel’s overall misconduct was so severe that we can nonetheless review it. (Simmons, supra, 62 Cal.App.3d at p. 355 [“even in the absence of an objection and request for admonition, where there are flagrant and repeated instances of misconduct, an appellate court cannot refuse to recognize the misconduct”].)

Further, Thach has not cited to, nor has our independent research uncovered, any authority that holds a motion for directed verdict is a prerequisite for raising attorney misconduct on appeal. In sum, the Agency objected numerous times to Counsel’s conduct, and those objections were sufficient to preserve the issue for appeal.

DISPOSITION

The judgment is reversed and the cause remanded for a new trial. The Agency is awarded its costs on appeal.

We concur: MALLANO, P. J., NEIDORF, J.

Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

Redevelopment Agency of City of Long Beach v. Thach

California Court of Appeals, Second District, First Division
Sep 15, 2008
No. B187379 (Cal. Ct. App. Sep. 15, 2008)
Case details for

Redevelopment Agency of City of Long Beach v. Thach

Case Details

Full title:REDEVELOPMENT AGENCY OF THE CITY OF LONG BEACH, CALIFORNIA, Plaintiff and…

Court:California Court of Appeals, Second District, First Division

Date published: Sep 15, 2008

Citations

No. B187379 (Cal. Ct. App. Sep. 15, 2008)