Farber v. Klein

Filed 10/5/06 Farber v. Klein CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

Tricia A. Bigelow, Judge. Affirmed.

Berman, Berman & Berman, James W. McCord, Karen E. Adelman for Plaintiffs and Appellants.

Melvin Teitelbaum for Defendants and Respondents.

___________________________________________________

This case involves an unsuccessful claim of elder abuse. The defense verdict was in favor of Samuel Klein, the proprietor of the Beverly Royale Board and Care (hereinafter, Beverly Royale) facility, who plaintiffs allege had turned off the oxygen supply of surviving 86-year-old patient Marge Farber. The plaintiffs’ theory at trial was that the facility was not licensed to care for patients such as Farber, who require a gastrostomy tube (a gastric feeding tube), and that turning off her oxygen would result in Farber’s transfer to a hospital, thus no longer jeopardizing the facility’s license. The jury apparently disbelieved the accusation of a caregiver at the Beverly Royale, specifically finding in its special verdict that Klein did not turn off Farber’s oxygen supply.

We conclude that although the defense failed to give the requisite pretrial notice of witnesses, as to expert or any other witnesses, any error in permitting Farber’s treating physician to testify for the defense as a percipient witness, who essentially just acknowledged his various entries in hospital medical records, was harmless. Nor is a new trial warranted by an unanswered defense question regarding Medi-Cal coverage for medications. Equally unavailing are complaints about purported references to the relative wealth and power of two of the plaintiffs who are attorneys (Farber’s son and granddaughter). Finally, there is no merit to the claim of prejudice from unobjected to testimony or comments in closing argument about Klein’s religion.

FACTUAL AND PROCEDURAL SUMMARY

Underlying facts

Plaintiff Marge Farber lived at the Beverly Royale, a board and care facility owned and operated by defendants Samuel Klein and his wife. Plaintiff Stephanie Berman Schneider is Farber’s granddaughter. Plaintiff Ronald Berman is Farber’s son and guardian ad litem. Schneider and Berman are also attorneys in the law firm (Berman, Berman & Berman, LLP) representing plaintiffs at trial and on appeal. The Beverly Royale was a licensed facility located in a single-family home on North Laurel Avenue in Los Angeles. The Beverly Royale had a maximum of six residents, and its employee caregivers were paid directly by the families of the residents and not by Klein.

Farber was in poor health and suffered from dementia; in 1998 she had a gastrostomy tube installed and in 1999 required the administration of oxygen through a cannula. On several occasions, emergency medical situations arose and paramedics were summoned to take her to the hospital. On one such occasion, on October 5, 2000, plaintiffs allege that the hospitalization was necessitated because Klein turned off Farber’s oxygen supply.

The Beverly Royale was not licensed to care for residents with gastrostomy tubes. In fact, at one point state authorities had conducted a surprise inspection of the Beverly Royale, found another patient with a gastrostomy tube, and cited the facility for that violation. Farber’s theory at trial was that Klein was afraid that another surprise inspection might reveal her gastronomy tube, and that the violation might cause the suspension of the Beverly Royale’s license, thus prompting Klein to cut off Farber’s oxygen and thereby oust her from the facility.

The principal support for that theory was the testimony of Erlinda Mendoza, a caretaker at the Beverly Royale whose salary was paid by Berman. According to Mendoza, Klein regularly removed and instructed staff at the facility to remove life-sustaining equipment from Farber’s room and then hid the equipment in the event of unexpected inspections. Mendoza also asserted that Klein had instructed her to withhold Farber’s nourishment and medications and to turn off Farber’s oxygen, which would cause her to be hospitalized. When Mendoza refused to turn off her oxygen, Klein purportedly did so himself. Farber became ill; she turned “blue” and vomited. Klein called 911. Farber was taken to a hospital and thereafter did not return to the Beverly Royale.

After Farber’s emergency hospitalization on October 5, 2000, Mendoza decided to no longer work at the Beverly Royale. From October 2000 through the date of trial (October 2004), Farber stayed at a different residential facility where Mendoza was again privately employed by Berman to take care of Farber.

Klein denied that he had turned off Farber’s oxygen supply on the day in question. He also denied ordering caregivers to remove equipment from Farber’s room. However, Klein acknowledged that he wanted Farber out of the facility because her particular type of gastric medical equipment in the board and care facility constituted a violation of state regulations.

Klein had known for some time about this violation of state regulations. In fact, in September of 2000, Klein specifically advised Farber’s son, Berman, that the Department of Social Services did not allow Farber’s type of gastric medical equipment in a board and care facility. Klein even showed Berman a copy of the state regulation. Berman responded by telling Klein: “write [me] a letter [about] this, and don’t worry. I’m your lawyer. I’m going to take care of it. Don’t worry. I’m a big law firm. I’m going to protect you. You don’t have to worry about nothing.”

Overview of the trial

In September of 2001, plaintiffs filed the lawsuit herein. They alleged causes of action for reckless neglect, negligence, intentional infliction of emotional distress, and unlawful business practices (Bus. & Prof. Code, § 17200 et seq.). The evidence adduced at trial established, in pertinent part, the underlying facts discussed above.

A major issue at trial arose when plaintiffs moved to preclude defendants from calling as a witness Dr. Stefan Unterhalter, Farber’s treating physician. They sought to preclude him from testifying because of defendants’ failure to comply with statutory notice requirements as to the use of an expert witness.

Although plaintiffs in their pretrial exchange of expert witness information had placed Dr. Unterhalter on their own list of expert witnesses, they had not deposed him and did not call him as their witness at trial. After the trial began, defendants advised opposing counsel of their intention to call Dr. Unterhalter as their witness, though they had never filed the requisite response to demands for exchange of expert witness information. The trial court ruled that Dr. Unterhalter could testify as a percipient witness and would not be permitted to give expert opinion testimony.

After the trial had commenced, Dr. Unterhalter came to the courthouse because counsel for defendants, whose personal service upon the doctor was defective, lied and told the doctor that the judge had ordered that he appear in court. On direct examination, Dr. Unterhalter’s explained that he had been Farber’s doctor since 1992. Dr. Unterhalter acknowledged the various hospital medical record entries he had dictated which documented his assessment of Farber’s medical condition upon her numerous admissions and discharges from the hospital since approximately July of 1999 through October of 2000.

Dr. Unterhalter’s hospital medical record entries noted on two early occasions, for example, as follows: Farber “was again hospitalized with acute deterioration of her chronic respiratory status, secretions, possible pneumonia;” and “She had a grave condition because of her advanced age, preexisting medical problems and precarious respiratory status. The son is fully informed.” On other occasions, Dr. Unterhalter remarked in the hospital medical records: “The patient remains at high risk for aspiration, current respiratory failure, [and] probability of recurrent hospitalization remains very high. . . . The patient may even die of her underlying medical problems”; and “Respiratory failure, recurrent sepsis . . . pneumonia, all precipitated by a seizure while she was having an x-ray.” Dr. Unterhalter further noted in the hospital medical records on other occasions: “The patient is being discharged to her board and care where they are very familiar with her and able to manage this complex patient”; and “The patient’s discharge was very carefully coordinated with her son, Mr. Ron Berman, as the patient has returned to the board and care where she is under expert treatment.”

Regarding Farber’s hospitalization on October 5, 2000, the day on which events triggering the litigation herein occurred, Dr. Unterhalter wrote in his medical report, “Recurring vomiting may be metabolic, related to dilantin toxicity. . . . The patient’s granddaughter has been fully apprised of her medical condition.” He explained at trial that Farber had a seizure disorder and was on maintenance dilantin medication as treatment for her seizures.

On cross-examination, Dr. Unterhalter characterized all of Farber’s hospitalizations as involving respiratory problems. Dr. Unterhalter considered Farber’s caregiver, Mendoza, to be a “competent” and “dedicated nurse.” Regarding Dr. Unterhalter’s written comment about dilantin, he explained that it was not his intention to indicate there had been any overdose of the medication. Rather, he explained that with a complicated patient taking multiple medications, levels of drugs such as dilantin must be closely monitored to ensure the proper therapeutic range. He had never been accused of any malpractice regarding this matter.

During jury deliberations, the only request made by the jury was to reread “in full” the testimony of Mendoza, who had testified that Klein had purportedly removed Farber’s oxygen supply. The next day, the jury returned its verdict in favor of the defense. As indicated by the special verdict form, the jury specifically found that Klein did not “intentionally disconnect” Farber’s “oxygen supply on October 5, 2000.” Pursuant to the instructions in the special verdict form, the jury thus did not answer other questions, such as whether Klein acted with recklessness, malice, oppression, or fraud, or whether Klein’s conduct was a substantial factor in causing harm to Farber.

DISCUSSION

I. Any error in permitting Dr. Unterhalter to testify was harmless and does not warrant a reversal of the jury’s verdict.

Plaintiffs contend the trial court erred in permitting Dr. Unterhalter to testify, either as an expert witness or as a percipient witness, because defendants failed to so designate the doctor as a witness prior to trial. However, any error here was under the circumstances harmless.

Former Code of Civil Procedure section 2034, subdivision (a)^[1] provides that after obtaining the initial trial date for the action, any party may demand that all parties simultaneously exchange information concerning each other’s expert witnesses. In response, each party must designate the name and address of any person whose expert opinion testimony that party expects to introduce at trial. (§ 2034, subds. (a)(1) & (f)(1).) If a party designates what is referred to as a retained expert, that party must also serve an expert witness declaration setting forth a “brief narrative statement of the general substance of the testimony that the expert is expected to give.” (§ 2034, subd. (f)(2)(B).) However, no expert witness declaration is required for a treating physician who will be called to testify at trial as an expert witness, although the proponent of the witness must still list the name and address of the treating physician expert in any exchange of expert witness lists prior to trial. (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 34-39.)

Upon the objection of any party who is in compliance with the above provisions for the exchange of expert witness information, “the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to . . . [l]ist that witness as an expert” as required by the statutory scheme. (§ 2034, subd. (j).) Even as to witnesses who are not experts, the local superior court rules provide that prior to the final status conference “counsel must have exchanged and filed . . . trial witness lists . . . . Failure to exchange and file [this item] may result in not being able to call witnesses . . . .” (Super. Ct. L.A. County, Local Rules, rule 7.9(h).)

In the present case, it is uncontested that defendants did not respond to the demands for exchange of expert witness information, failed to exchange any witness lists prior to trial in accordance with the superior court rules, and did not designate Dr. Unterhalter as a witness until belatedly doing so on the second day of trial proceedings. However, in plaintiffs’ own statement regarding exchange of expert witness information, filed approximately 11 months prior to trial, they had designated Dr. Unterhalter as one of their own expert witness.

On the second day of trial (October 27, 2004), defendants urged the court to accept testimony from Dr. Unterhalter not as an expert witness but merely as a percipient witness. Counsel for plaintiffs argued against Dr. Unterhalter’s testifying at all, noting that mere questions about prior pulmonary or gastric problems would do “nothing to advance either side of this case,” and that the “only” question that might be useful would require an answer by an expert in the form of opinion testimony as to what happened at the Beverly Royale. However, counsel for defendants explained: “We want to show that the event that [Farber] went to Cedars Sinai that day for was not the pulling of the oxygen as they maintain. It was either because of [her] medication or because it was something that is a recurring thing in her condition that happened on prior occasions.”

On October 29, 2004, defendants left a subpoena at Dr. Unterhalter’s office to secure his attendance at the trial; he was never personally served with that subpoena. Dr. Unterhalter was out of town at a conference and did not return to his office until November 2, 2004. That morning, Dr. Unterhalter spoke to counsel for defendants and indicated he could not appear that day because of the numerous patients scheduled at his office. Counsel for defendants then told Dr. Unterhalter that the judge had “ordered” him to appear, and the doctor went to the courthouse because he feared being held in contempt of court.

To the extent counsel for defendants fraudulently secured the presence of Dr. Unterhalter (cf. In re Abrams (1980) 108 Cal.App.3d 685, 688, 694-695), such conduct certainly cannot be condoned, as the trial court aptly observed. Nonetheless, the trial court also pragmatically noted that Dr. Unterhalter was already in court, and it ruled that he could testify not as an expert witness, but nonetheless could relate his observations.

Thus, the issues boil down to the following: (1) whether the trial court erred in permitting Dr. Unterhalter to testify as a percipient witness rather than an expert witness; (2) whether his testimony in fact was so restricted, or whether he presented expert opinion testimony; and (3) whether any error as to the doctor’s testimony was so prejudicial as to amount to a miscarriage of justice and require a new trial.

First, although defendants did not prior to trial identify Dr. Unterhalter as a witness, either as an expert or lay witness, the trial court did not err in permitting the doctor to offer testimony, as long as it did not amount to expert witness opinion testimony. For failure to designate Dr. Unterhalter prior to trial as a witness at all, the trial court was permitted, but not required, to preclude his testimony. (Super. Ct. L.A. County, Local Rules, rule 7.9(h).) In opting not to totally preclude all of his testimony, the trial court exercised its discretion to preclude only Dr. Unterhalter’s “expert opinion” (§ 2034, subd. (j)), which is the sanction authorized by statute for failure of a party to designate an expert witness prior to trial. Indeed, no statute or case law precludes the trial court in such circumstances from permitting a doctor to present any testimony, other than expert opinion testimony. (See, e.g., Province v. Center for Women’s Health & Family Birth (1993) 20 Cal.App.4th 1673, 1684 [trial court on remand instructed to limit doctor’s testimony “to percipient observations”].)

Second, our review of Dr. Unterhalter’s trial testimony indicates that during his direct testimony he indeed was not asked for his expert opinion. On direct examination Dr. Unterhalter merely confirmed, in response to numerous questions, the entries he made in hospital medical reports regarding Farber’s condition at the time of various hospital admissions and discharges. All of those hospital medical records which Dr. Unterhalter confirmed in his testimony, almost entry by entry, were shown to the doctor without objection and then admitted into evidence without objection. In essence, Dr. Unterhalter merely confirmed or parroted his prior hospital medical record entries, which constituted defendants’ trial exhibit 103, and reiterated his prior documented observations.

Plaintiffs complain principally about Dr. Unterhalter’s answer to the question of the cause of Farber’s injuries on the date on which the elder abuse was alleged to have occurred. Dr. Unterhalter’s written entry on that date was: “recurring vomiting may be metabolic, related to dilantin toxicity.” Counsel for defendants then asked him to explain what that comment meant. The doctor replied that Farber had a seizure disorder and was on maintenance dilantin medication as treatment for her seizures. On cross-examination, Dr. Unterhalter clarified that it was not his intention to indicate there had been any overdose of the medication. Thus, even if dilantin medication was the cause of Farber’s vomiting, Dr. Unterhalter did not address issues pertaining to Farber’s oxygen supply or express a specific opinion as to the ultimate reason for her removal that day from the Beverly Royale.

To the extent the question about dilantin or any other acknowledgment by Dr. Unterhalter of his medical record entries constituted opinion testimony, such testimony certainly was not on “the ultimate issue to be decided by the trier of fact.” (Evid. Code, § 805.) None of the questions, for example, addressed the ultimate issue plaintiffs successfully fought to preclude, i.e., a question that would require an answer by an expert in the form of opinion testimony as to what happened at the Beverly Royale.

Finally, we find that any error in permitting Dr. Unterhalter’s testimony was not so prejudicial as to amount to a “miscarriage of justice“ (Evid. Code, § 353, subd. (b)) and require a new trial. The jury requested a reading “in full” of the testimony of Mendoza, indicating the importance of her testimony. (See Seaman’s Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 771, 773-774; Smith v. Shankman (1962) 208 Cal.App.2d 177, 184.) Indeed, Mendoza was the only person to witness Klein purportedly turning off Farber’s oxygen supply, and the case amounted to a credibility contest between Mendoza and Klein, who denied any such wrongdoing. Thus, the case turned on the credibility of Mendoza versus Klein, and not on Dr. Unterhalter’s testimony.

Most significantly, virtually everything about which Dr. Unterhalter testified was contained in the hospital medical records, which were admitted into evidence without objection. Essentially, Dr. Unterhalter verified and parroted for the jury his prior entries in the hospital medical records. And, plaintiffs do not complain on appeal about the admission of the hospital records containing Dr. Unterhalter’s statements. Thus, even absent Dr. Unterhalter’s testimony, virtually the same evidence would have been before the jury in the parallel form of hospital records.

It simply is “not reasonably probable“ that absent Dr. Unterhalter’s testimony “plaintiff[s] would have obtained a more favorable result.” (Gallo v. Peninsula Hospital (1985) 164 Cal.App.3d 899, 905.) Accordingly, any error in permitting Dr. Unterhalter’s testimony was harmless and does not warrant a new trial. (Evid. Code, § 353, subd. (b).)

II. No prejudicial evidence was admitted regarding insurance.

Plaintiffs contend that prejudicial misconduct occurred when defense counsel asked Mendoza whether Medi-Cal covered Farber’s medications, thereby purportedly intimating that there was no out-of-pocket expense incurred by Farber and thus no recovery warranted. The contention is without merit.

It is well settled that “‘[d]amages recoverable for a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for his loss by insurance effected by him, and to the procurement of which the wrongdoer did not contribute.’” (Loggie v. Interstate Transit Co. (1930) 108 Cal.App. 165, 169.) Evidence of the receipt of collateral insurance benefits is inadmissible, and counsel may be guilty of prejudicial misconduct in questioning a witness regarding such insurance. (Id. at p. 168-170; see also Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 729.)

In the present case, after questioning Mendoza about which medications Farber took and how Mendoza administered those medications, the following colloquy ensued:

“Q [by counsel for defendants:] Who paid for all these medications? Did Mr. Klein’s facility pay for them?

A [Mendoza:] No. Her son.

Q Did Medi-Cal cover that?

MR. MC CORD [counsel for Plaintiffs:] Objection.

THE COURT: Just a second. That’s irrelevant. You don’t have to answer that. Don’t ask questions like that again, counsel. You know better.”

First, it is well settled that generally, a party “‘”may not complain on appeal of . . . misconduct [by opposing counsel] unless in a timely fashion--and on the same ground--the [party] made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.”’” (People v. Gray (2005) 37 Cal.4th 168, 215, italics added.) Here, the objection to the question about Medi-Cal coverage was a general, unspecified objection.

Counsel did not allege, as he does now on appeal, prejudicial misconduct by opposing counsel. He thus failed “to make clear the specific ground of the objection.” (Evid. Code, § 353, subd. (a).) In fact, the trial court sustained the general objection only on the grounds that it was irrelevant (Evid. Code, § 210), an issue different from the prejudicial misconduct complained of now. Accordingly, plaintiffs have failed to preserve the issue for appeal.

Second, even if this claim of error was properly preserved for appellate review, we would find the unanswered question about Medi-Cal coverage to be harmless error. It is simply unrealistic to assume, as plaintiffs suggest, that merely inquiring if prescription drugs are covered under Medi-Cal would somehow intimate to the jury that no out-of-pocket expense was incurred by Farber, and thus that purportedly no recovery was warranted. Indeed, as indicated by the jury instructions, plaintiffs sought far more than mere compensation for payment of prescription drugs. They sought damages for all medical expenses, past and future, as well as for noneconomic damages for “[p]hysical pain, mental suffering, loss of enjoyment of life, inconvenience, anxiety, humiliation and emotional distress.” The question asked thus was of no consequence to the bulk of the damages sought.

Also, unlike private insurance, coverage which is voluntary and thus provides a monetary benefit only to some, any juror could reasonably assume as a fact of life that an 86-year-old hospital patient would have nondiscretionary, government-provided Medi-Cal coverage. Thus, even if the jurors assumed from counsel’s unanswered question that Farber’s prescription drugs were covered by Medi-Cal, the mere mention of Medi-Cal coverage was so unenlightening and irrelevant that it added nothing, prejudicial or otherwise, to the case.

III. There is no merit to the claim of prejudicial misconduct or improper appeal to the jury concerning the purported relative wealth and power of plaintiffs (and attorneys) Berman and Schneider.

Plaintiffs complain about various references they characterize as comments on their wealth and power and urge that such testimony and comments by counsel inflamed the jury’s prejudices against them. Specifically, defendants cite unobjected to references in Klein’s testimony concerning the fact that Berman was a lawyer who owned a “big law firm” and had an entire firm of lawyers at his disposal. They also note unobjected to references in defense counsel’s argument about the fact that Berman and Schneider were attorneys who owned a law firm with multiple offices. Plaintiffs assert that defendants attempted to unfairly portray themselves as “financial underdogs” up against “big guy lawyers” who have a law firm and lawyers easily at their disposal.

It is well settled that references to a defendant’s wealth may constitute prejudicial misconduct. (Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, 14.) “Unless relevant, references to an adverse party’s wealth is improper.” (Smith v. Covell (1980) 100 Cal.App.3d 947, 960.) “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.” (Hoffman v. Brandt (1966) 65 Cal.2d 549, 552-553.)

In the present case, the contention is unavailing for several reasons. First, plaintiffs would be hard-pressed to complain about Klein’s testimony regarding comments that plaintiff Berman made to Klein boasting that he had a “big law firm,” because it was plaintiffs’ own counsel who called Klein as an adverse witness (Evid. Code, § 776) and on several occasions asked questions eliciting such remarks. Plaintiffs’ counsel did not ask that such comments be stricken or that the jury be admonished. Nor did plaintiffs’ counsel object or request a jury admonition when on one occasion defense counsel elicited similar testimony from Klein and on several occasions made similar comments to the jury. The matter was thus waived. (Evid. Code, § 353, subd. (a); see also Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 318; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 859-860.)

Second, even assuming the issue was properly preserved for appellate review, the “big law firm” comments were, in fact, relevant to a significant issue in the case. According to Klein, the reason why Farber remained at the Beverly Royale for as long as she did, even though her gastric feeding tube should have precluded her from staying there at all, was because Berman wanted her to stay there. As Klein explained, “[Berman] kept telling me that he [was] going to apply for a waiver [from the Department of Social Services to permit a patient with a gastric feeding tube]. And I told him the waiver, I have to apply, not him. But, anyways, [he said] you don’t worry; I’m a lawyer, I have a firm, I’m going to take care of you. Whoever going to do for you, anything, sue you or do something [regarding your] license. I’m going to take care of it. I’m your lawyer.”

Similarly, when Klein at one point showed Berman a copy of the state regulation prohibiting a patient with a gastric feeding tube from staying at a board and care facility, Berman boasted he could take care of it. According to Klein, Berman told him to “write [me] a letter [about] this, and don’t worry. I’m your lawyer. I’m going to take care of it. Don’t worry. I’m a big law firm. I’m going to protect you. You don’t have to worry about nothing.”^[2] On another occasion, Klein reminded Berman “you know that your mother [is] not supposed to be here. So he tells me, . . . I told you before and I’m telling you now, I have a big law firm, I have lot[s] of lawyers, I have lawyers working for me, good lawyers; don’t worry. . . . You’re protected. What do you worry? You have nothing to worry about.”

Accordingly, the comments complained of were relevant to explain why Farber remained at the Beverly Royale when its state licensing did not permit a resident with a gastric tube. Viewing the comments in their proper context and in light of the record as a whole (see Love v. Wolf (1964) 226 Cal.App.2d 378, 385), there was no prejudicial misconduct or improper appeal to the jury concerning the purported relative wealth and power of plaintiffs (and attorneys) Berman and Schneider.

IV. There was no improper testimony or comment to the jury about religion.

Plaintiffs contend they were prejudiced by repeated and extended statements about religion which were irrelevant to any issue in the case and were calculated only to engender sympathy for defendants. Specifically, plaintiffs assert that Klein improperly informed the jury of Farber’s religion (Jewish), and that defense counsel referred to the Kleins’ religion (also Jewish, but orthodox) in an attempt to characterize the Kleins as more devout than Farber and thus incapable of the conduct of which they were accused.

“It is a universal rule that the questioning or argument of counsel relative to the race, nationality or religion of a party, when irrelevant to the issues, is improper.” (Kolaric v. Kaufman (1968) 261 Cal.App.2d 20, 27-28.) Here, the claim of error is unavailing for several reasons.

Plaintiffs’ references to comments involving religion are taken out of context and, when properly viewed, reveal a valid purpose--corroborating a time frame for events on the day in question and helping to establish an “alibi” for Klein. As Klein explained in his testimony, on October 5, 2000, he attended extended religious services--a daily 6:30 a.m. Talmud study at his synagogue, followed at 7:15 a.m. by special services for the High Holidays (services during the period from Rosh Hashanah through Yom Kippur), followed at 7:45 a.m. by regular daily morning services, followed at 8:45 a.m. by an additional lecture regarding the High Holidays which concluded at exactly 9:15 a.m. After 9:15 a.m., Klein went home, where he received a beeper message from the Beverly Royale. When Klein arrived at the Beverly Royale, he found Farber vomiting and called 911. Thus, a description of Klein’s observant religious nature was pertinent to establishing his absence at the time Farber became ill.

Moreover, the reference in Klein’s testimony to the fact that Berman and Farber are also Jewish was innocuously in the context of noting that when Klein saw Berman on September 29, 2000, it was the eve of the Jewish New Year, and he greeted Berman and everyone else he met by wishing them a happy new year. As Klein further explained, “And just as a matter of telling him happy new year, I mentioned, you know, Ron [Berman], you know, you know that your mother [is] not supposed to be here. So, he tells me, Sam, I told you before and I’m telling you now, I have a big law firm, I have lot[s] of lawyers . . . you’re protected. What do you worry? You have nothing to worry about.” The reference to religion was thus appropriate to explain the context and background of the meeting at which Klein again advised Berman that his mother was not supposed to be staying at the Beverly Royal with her gastric tube situation.

Nor was there anything untoward in defense counsel’s “9/11” reference during closing argument. According to plaintiffs, defense counsel “went so far as to suggest that the Kleins were part of a group of observant Jews who were ‘chosen’ to survive the September 11, 2001 terrorist attacks because of their devoutness.” We find this characterization a distortion of the record.^[3] During closing argument, defense counsel did refer to the orthodox Jews in New York who, during the High Holiday period in 2001, participated in extended religious observances in the morning and thus fortunately arrived late to work and were not fatally trapped in the World Trade Center on 9/11. However, it is apparent that defense counsel merely drew an attention-getting parallel to Klein’s religious behavior on October 5, 2000, to illustrate the credibility of Klein’s defense that he was absent on that morning at the time Farber became ill. Particularly in view of the wide latitude accorded counsel in closing argument (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795-796), we find no error.

Even assuming arguendo any merit to plaintiffs’ claim of error, since there was no objection to any of the testimony or comments complained of and no request for a specifically tailored curative admonition, plaintiffs failed to preserve the issue for appellate review. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 794-795; People v. Prieto (2003) 30 Cal.4th 226, 259; Evid. Code, § 353, subd. (a).) Moreover, the jury was instructed generally that it “[m]ust not be biased against any witness because of his race, sex, religion, occupation, sexual orientation or national origin.” (Italics added.) We must presume the jury followed the trial court’s instruction. (People v. Harris (1981) 28 Cal.3d 935, 951; Rufo v. Simpson (2001) 86 Cal.App.4th 573, 598.) Otherwise, there would be no point in instructing juries at all or in reversing for prejudicially erroneous instructions. (Parker v. Randolf (1979) 442 U.S. 62, 73.)

Accordingly, the claim of reversible error because of improper testimony or comment to the jury regarding religion is without merit.^[4]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J. ASHMANN-GERST, J.

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^[1] Code of Civil Procedure section 2034 was repealed and replaced by largely similar provisions enacted with different section numbers. (Stats. 2004, ch. 182, § 22, operative July 1, 2005; see current Code of Civil Procedure section 2034.210 et seq.)

Unless otherwise indicated, all further statutory references are to the former Code of Civil Procedure.

^[2] In a similar vein, defense counsel argued to the jury (without objection) that it was unrealistic to believe that Berman and Schneider, attorneys with law offices in Los Angeles and San Francisco, did not know that Farber was not supposed to be kept at a board and care facility. Also, defense counsel argued (without objection) that Berman was a “busy lawyer” who delayed in attempting to get a waiver for his mother to stay at the facility, and ultimately was advised that he could not obtain such a waiver.

^[3] The relevant portion of defense counsel’s closing argument, in its entirety, is as follows: “What did Mr. Klein tell you about that morning? He gave you his daily routine that he’s followed for 12 years. Now, the Orthodox Jewish community is admittedly a somewhat insular community, and sometimes we know things that happened as a result, you may not have heard otherwise. A year later, about the same time, the week before Rosh Hashanah, which is also a week when these special prayers are said, the unfortunate infamous 9/11 attack occurred in New York. Not to say that we know things better than anybody else, but we know that many people came late to work that day because--some of them we actually know came late to work that day who worked in the World Trade Center because of these special prayers, and fortunately they’re still alive today. So when Mr. Klein tells you that this is something that Orthodox Jews do at that time, those that do that year in, year out, they do it. And at 7:00 in the morning, he was at the synagogue. That’s where he is day in, day out. Ms. Mendoza places him at the facility. I think we’re trying to help you decide where he was. I think they need to show by clear and convincing evidence that he was able to do that and he was there. They haven’t shown that.”

^[4] Finally, nor is there any merit to the claim of cumulative error, as there is little or no error to accumulate. (See People v. Edwards (1991) 54 Cal.3d 787, 846.)