Salazar v. Patel

Filed 7/13/07 Salazar v. Patel CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge.

Rodney C. Haron for Plaintiff and Appellant.

Brown & Peel and Manuel Garcia for Defendant and Respondent.

-ooOoo-

Plaintiff Doralisa Salazar (Salazar) appeals from a judgment awarding her nearly $1,500 for injuries she sustained in a motor vehicle accident. Salazar contends the trial court erred when it denied her motion for a new trial based on juror misconduct, misconduct of defense counsel during closing argument, and inadequate damages. As we shall explain, we agree that defense counsel committed misconduct during closing argument, and that such misconduct resulted in prejudice. Accordingly, we will reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Trial Testimony

On Friday, November 5, 1999, defendant Vaishali Kanushai Patel (Patel) ran through a red light at the intersection of Shaw and Cedar Avenues at about 50 miles per hour and hit Salazars vehicle as she was making a left turn on a green turn arrow. The front end impact between the two vehicles was tremendous and caused Salazars vehicle to spin around and hit the vehicle behind her. Salazar was wearing a seat belt and her air bag deployed. She did not lose consciousness and was able to get out of the car and walk around.

An ambulance transported Salazar, who was then 22 years old, to the hospital emergency room. She told emergency room personnel that her chest and hips hurt. The emergency room doctor examined her and told her she probably would feel ongoing effects over the next couple of days. He prescribed medication, but did not schedule a follow-up examination or refer her to any other physicians, although he told her to see her family doctor if she still felt pain. The hospital chart states that if Salazar was worse or unable to contact her doctor, she should return to the emergency department, and she should see her doctor if she was not well in a week.

The Monday after the accident, Salazar saw her family doctor, Dr. Derrek Wells, complaining of chest and abdominal pain. Dr. Wells prescribed other medications, sent her out for x-rays, which did not show any fractures, and told her to come back if she was still in pain. Dr. Wells did not refer her to other health care providers for further care, although he told her to ice her sore areas, which helped. Salazar did not follow-up with Dr. Wells after this visit, although she saw him again on October 5, 2000, for a stomach ache. Salazar did not complain to Dr. Wells at that time about any back pain she was having.

Salazar testified she continued to have pain, so on the advice of some friends, she called Yano Chiropractic, which is located in Selma, where Salazar lives. According to Salazar, personnel at the chiropractors office told her that since she was involved in a car accident, they would not see her unless she could prove she could pay them, and advised her to consult an attorney. Salazar found an attorney, Craig Davis, who called Yano Chiropractic on November 12, 1999, to set up an appointment. On November 15, 1999, Salazar began treatment there with Dr. Alan Zenimura, a chiropractor. She received approximately 62 treatments over 11 months.^[1]

When Dr. Zenimura first saw Salazar, her chief complaints were of mid- and low-back pain, rib pain, and sternal and chest pains. Dr. Zenimura determined she had misalignments and started a treatment program for her, which involved chiropractic adjustments and spinal manipulations of her thoracic spine and lower back. Dr. Zenimura saw Salazar three times per week for almost four weeks. At that time, Salazars symptoms began to decrease, so he reduced her visits to twice per week. Salazar continued to improve, so Dr. Zenimura reduced her visits to once per week in January 2000. According to Dr. Zenimura, in March and April 2000, Salazar still was experiencing lower back pain, but at a decreased level. In August 2000, Dr. Zenimura declared her to be permanent and stationary, which means her condition was stable. Although Salazar stated she had occasional low-back symptoms of slight intensity, Dr. Zenimura believed he had gotten her to the best level he could. When he released her, he did not refer her to anyone else, but he told her to come back if she had flare-ups. After that, Dr. Zenimura saw Salazar once more in August, twice in September, and for the last time on October 31, 2000. Dr. Zenimura opined that in all medical probability, Salazars condition was caused by the motor vehicle accident.

Salazar testified that her pain returned in October or November of 2000, so she went to see another chiropractor, Dr. Holmes, whose office is in Fresno, where she was working. Dr. Holmes diagnosed Salazar as having cervical sprain strain with lumbosacral radiculopathy and sacroiliac strain. Salazar also saw Dr. Myers, a medical doctor in Dr. Holmess office, who gave her prescription medications for the pain and a muscle relaxant.

Since Salazar continued to have pain, Dr. Holmes referred Salazar to Dr. Chauhan, a board certified neurologist, in March 2001. Dr. Chauhan wrote in his reports that chiropractic care was appropriate and should be continued. Dr. Chauhan performed a nerve conduction test and diagnosed slight S1 radiculopathy, which he initially reported as being on the right but three weeks later issued a correction to the report which stated it was actually on the left and the initial report was a typographical error. In April 2001, during a follow-up evaluation Dr. Chauhan stated that Salazar had suffered mostly a strain injury of the spine, she did not need further neurological workup, she was near maximum medical improvement, and he deferred to Dr. Holmes for a final determination. Dr. Holmes released Salazar from treatment on June 29, 2001. By that time, her neck and upper back were much better, but she still had symptoms in the sacroiliac lumbar leg area. Dr. Chauhan released her in October 2001. Dr. Chauhan examined Salazar again in July 2005. He found the same problems with the low back pain radiating down the left leg and that Salazar continued to have left radiculopathy.

Salazar had several MRIs. In November 2000, Dr. Holmes ordered an MRI of her lower back. The radiologist reported the MRI showed Salazar suffered from arthritis in her lower back. In March 2001, Dr. Chauhan ordered an MRI of her mid-back and neck, which showed a reversal of curvature in a cervical spine or neck, and an MRI of her thoracic spine, which was negative. Two weeks before that MRI was performed, however, Dr. Chauhan examined Salazar and noted that the cervical curve was normal. The MRIs were negative for disk injury. Dr. Chauhan ordered a third MRI in September 2001, which showed nothing abnormal.

Dr. Chauhan referred Salazar to Dr. John F. Petraglia, a specialist in anesthesia and pain management, who she saw twice in December 2004. Salazar complained of cervical lumbar pain. Dr. Petraglia diagnosed cervical lumbar strain with persistent back pain, intermittent lumbar radiculitis, mild sleep disorder and reactive depression. Salazar was pregnant at the time, so she received conservative treatment and Dr. Petraglia recommended she return after the babys birth so he could reassess her condition.

Salazar saw Dr. Petraglia again in July 2005. Salazar presented with very large muscle spasms and nodules in her back and she complained of persistent left leg numbness and tingling. Dr. Petraglia testified when there is arthritis in a very focused area, he would suspect it was related to some other causal event like a traumatic injury. Muscle spasms are typically a consequence of something other than arthritis, and Dr. Petraglia would not expect to see arthritis in the lumbar spine of a previously healthy 28-year-old woman. Dr. Petraglia explained that the MRI report that stated there was mild osteoarthritis meant that the radiologist saw some abnormality of the joint, but because the radiologist does not see the patient, he or she cannot say what caused it or how long it had been there. He did not believe Salazar had arthritis. Dr. Petraglia agreed Salazars condition was chronic and would worsen over time. In Dr. Petraglias opinion, Salazars condition in all medical probability was caused by the motor vehicle accident. Dr. Petraglia also testified about the future treatment Salazar would require and its cost.

Salazar testified she continues to have lower back pain, which radiates down both legs, although it is primarily down her left leg. According to Salazar, Drs. Chauhan and Holmes both told her the pain would never go away like before the accident and she would have to live with it. Salazar cannot wear high-heeled shoes because they make her back sore. After the accident, Salazar was off work for about a week, losing $290 in wages. While Salazar was very physically active before the accident -- she would jog, take aerobics classes, and roller blade -- after the accident she could no longer participate in athletics to her standards or jog as fast as she could before. She no longer takes aerobics classes or roller blades because she experiences back and leg pain when participating in those activities, and is less active with her three children, who at time of trial were eight years old, two years old, and five months old. Salazars pain level changes depending on her activities, but the pain is always there. Salazar claimed she did not have any back pain before the accident.

Dr. Lawrence Stroud Nordhoff, a chiropractor, qualified medical examiner and expert in biomechanics who Salazar retained as an expert, testified that based on his physical examination of Salazar and his review of her medical records, Salazars primary injury from the accident was caused by the lap belt, resulting in bruising to her chest, hips and lower abdominal area, as well as damage to the capsules and ligaments that support the lumbar spine and pelvis area, with secondary injuries to her upper back and neck. Dr. Nordhoff performed certain tests on Salazar and found she was weak on the left side. He was able to produce her leg symptoms and found her lumbars were tender and sore, with some mechanical and stability problems in her lower back. She also had altered sensation on the left consistent with radiculopathy. In Dr. Nordhoffs opinion, Salazar had reached a permanent state, which means she was going to have persistent long-term symptoms. He also performed a malingering test and found Salazars history to be credible, with her complaints of back and leg pain consistent with his findings. Dr. Nordhoff opined the reversal of cervical lordosis in Salazars neck more likely than not was caused by the motor vehicle accident. Dr. Nordhoff concluded that Salazar suffered neck and mid-back injuries that resolved by the time Dr. Holmes released her from treatment, and she continues to have low back instability causing pain that will exist for the remainder of her life.

Testimony revealed Salazar incurred a total of $905.61 in damages for care she received before she consulted an attorney and began treating with Dr. Zenimura, which included the ambulance, treatment at the emergency room, her visit to Dr. Wells, and the x-rays Dr. Wells ordered. In addition, Salazar presented evidence that she incurred a total of approximately $21,000 in damages for care she received after consulting an attorney and treating with Dr. Zenimura, which included bills from Yano Chiropractic Care, Dr. Chauhan, Dr. Holmes, Dr. Petraglia, and four MRIs.

Patels expert, Dr. John P. Cranston, a licensed, board certified orthopedic surgeon, examined Salazars medical records. Dr. Cranston testified the medical emergency room reports stated the accident caused abrasions and contusions. A neurological examination was within normal limits. In Dr. Cranstons opinion, Salazar did not require any further treatment after her first visit to her primary care provider, Dr. Wells. He testified that Salazars treatments at Yano Chiropractic and Holmes Chiropractic were not necessitated by the accident. Dr. Cranston also did not believe Dr. Chauhans treatment of Salazar was necessitated by the accident; he believed Dr. Chauhan was treating her for back pain due to the arthritic condition. In addition, in his opinion the bilateral facet joint pain that Dr. Petraglia found was consistent with Salazars arthritis, and his treatment of her was not necessitated by the accident. Dr. Cranston further testified none of the MRIs were necessary to treat the effects from the accident. Dr. Cranston considered the treatment Salazar received at the emergency room, the examination by Dr. Wells, the x-rays Dr. Wells ordered, and the ambulance ride necessary as a result of the accident. Everything after that was not caused by the accident and he believed the additional treatments were a function of chronic backache due to arthritic changes in the low back. In Dr. Cranstons opinion, Drs. Zenimura and Holmes were wrong in their diagnoses.

Closing Argument

In his closing argument, Salazars attorney, Rodney Haron, explained that since Patel admitted liability, the only issue the jury needed to decide was damages. He pointed out that the parties agreed lost wages amounted to $290. He also asked the jury to award Salazar $21,874 for past medical expenses, $574,118 for future medical treatment, and $279,377.28 for pain and suffering.

The closing argument of Patels attorney, Manuel Garcia, consisted of the following:

BY MR. GARCIA: [] I think you folks need to know whats been going on. [] Mrs. Salazar, could you please let me see that Post-it pad in front of you with that note from your attorney youve been passing back and forth? I think the jury would like to see what youve been showing your client.

MR. HARON: May we approach the bench, Your Honor?

THE COURT: Mr. Garcia, I dont think thats appropriate. Go ahead with your argument.

MR. GARCIA: Mr. Harons been passing a note to his client that says --

MR. HARON: Objection.

MR. GARCIA: The notes says, Stretch, twist in 15 seconds. So when he pushes it over there, it wont be an immediate response. Youre probably seeing the plaintiff doing this occasionally, and this, like shes hurting. Well, its a note hes been passing over there.

MR. HARON: Objection. Move to strike.

THE COURT: The objection is sustained.

MR. HARON: Motion to strike.

THE COURT: The objection is sustained. The remarks are stricken. [] Counsel, dont cross the line. Make your argument. He can communicate with his client. Lets roll along here.

MR. GARCIA: Ladies and gentleman, this is absurd. Im sorry theyve wasted your time. Its a week you guys have been away from your families, and its a setup, its a setup. Theyve created this case, theyve brought their doctors, theyre making their claims right now. I saw what was happening this morning. To be honest with you, I never questioned my career until this morning, and to see that happen in front of a jury and have them come up here and ask you guys for hundreds of thousands of dollars makes me sick. Im not going to waste any more of your time. Youve been through enough already. Im going [to] ask you to come back and give her a dollar and thats it. [] Thank you for your time. I apologize.

In rebuttal, Salazars attorney argued, in part: Mr. Garcia has given you absolutely no evidence of anything. The law is clear. His Honor has said any inappropriate statements were stricken. Those are not before you. Im not going to dignify them by addressing them. Theres no closing argument other than mine. Salazars counsel asked the jury to return with the verdicts for which he originally asked.

The Jurys Verdict

Before the jury retired to deliberate, the court reviewed the special verdict form with the jury and stated they were required to answer yes to the first two questions on the form, which asked whether Patel was negligent and whether her negligence was a cause of injury or damage to Salazar, since there was never an issue in the case about Patels liability. The court explained the jury only needed to decide the breakdown of economic and non-economic damages.

An unreported hallway conference was held outside the jurys presence before the jury adjourned for deliberations. After the jury retired to deliberate, the court allowed Salazars attorney to reserve until after the verdict a motion for mistrial based on the misconduct of defense counsel. The jury submitted a question to the court which asked when the date of the first MRI was and its cost, which the court answered. The jury again retired to deliberate and later returned a verdict awarding $905.67 in economic damages and past medical expenses, $290 in past lost income, and nothing for future medical expenses or non-economic damages, for a total award of $1,195.67. The court informed the jury that since it found some economic damages, it was required to award Salazar some amount of non-economic damages, and ordered the jury to return to deliberate. The jury deliberated and then returned with an additional $300 in non-economic damages, for a total award of $1,495.67.

After the jurors exited, Salazars attorney made a motion for mistrial due to counsel misconduct. He explained the basis for the motion as follows: Saying that he read evidence and trying to introduce evidence at the time of the closing argument when there was no such evidence before the jury, violating attorney/client privilege; any kind of a note that he may have seen or thought he saw was inappropriate, beyond appropriate. I mean its just -- and I would also ask the record to show that I did ask off the record in the back that the admonition of what he did say was to be disregarded entirely. Its not evidence. The court denied the motion without prejudice to him making any post-trial motion he wished to make, explaining it had admonished the jury at the time of the conduct that it was to be disregarded, as I recall. The record will speak for itself. [] I asked him to continue with argument and the argument wound up at that point or shortly thereafter. The jury was repeatedly instructed that what the attorneys say is not evidence. I also made a comment that theres nothing in the record with respect to any attorney/client notes or discussion, and I think I also said that you as an attorney have the right to talk to your client. The record will speak for itself.

The Motion for a New Trial

Salazar filed a motion for new trial on the grounds of jury misconduct, misconduct of Patels attorney, and inadequate damages. With respect to jury misconduct, Salazar argued the jury committed misconduct in its deliberations by considering evidence that was not admitted in court and Patels attorneys closing argument. In support of the motion, Salazar submitted a declaration from the jury foreman, Stephen H. Wade, who declared that at the beginning of jury deliberations on Friday, July 29, 2005, four jurors agreed they had made up their minds about the case on Wednesday and they were not going to change them, and one juror explained this was in part because she saw Salazar walking in the hallway outside the courtroom on Wednesday and it did not appear to her that Salazar was injured. Wade further stated that other jurors made no contributions to deliberations other than agreeing with the four who had made up their minds, and several jurors said their primary concern was that a verdict be entered that day so they didnt have to come back on Monday. According to Wade, the jury did not review or discuss the evidence. Wade explained that when the jury was sent back to deliberate on an award for pain and suffering, several jurors expressed anger at having to spend more time on the trial, as they had made up their minds, and one juror threw out a figure, stating that was enough, for which the jury immediately voted. Wade said during deliberations he heard some of the jurors discussing the implications of [Mr. Garcias] statements during closing argument regarding the falsity of [Salazar]s claimed injuries even though the court had ordered them stricken, and that [r]emarks were also made to the effect that Mr. Garcias closing argument was the most exciting thing that had happened all week.

With respect to attorney misconduct, Salazar argued Patels attorney committed misconduct when, at the outset of his closing argument, he read an attorney-client communication between Salazar and her attorney and then disclosed the communication to the jury, and after the court sustained Salazars attorneys objections, inferred to the jury that the note proved Salazar and her attorney had concocted a false claim. In support of this argument, Salazar explained in her declaration that after her attorney concluded his closing argument and sat down next to her, he wrote me a note on a post-it and moved it over in front of me. I then observed Mr. Garcia leaning over to look at that note after Mr. Haron gave it to me and then he got up and went to address the jury in his closing argument.

Patel filed written opposition to the motion. Patel argued the jury did not commit misconduct and Salazar had not shown any prejudice from the jurys actions. With respect to misconduct by her attorney, Patel argued Salazar and her attorney were attempting to mislead the jury and Patels attorney simply attempted to take reasonable remedial measures to disclose the fraud to both the Judge and the jury. Patel further argued the jury was not prejudiced, since Wades declaration showed jurors already had made up their minds before the closing argument and the declaration did not state jurors provided a verdict based on the closing argument, and any possible prejudice was abrogated by the court striking defense counsels remarks.

Patels attorney explained in his declaration that on the last day of trial, Salazar was sitting to his right and as the court was instructing the jury, Salazars counsel began tapping on the table with his finger in an apparent attempt to gain someones attention. Patels attorney assumed Salazars attorney was attempting to capture his attention, as he had tapped his finger throughout to trial to get his attention if he wanted to show defense counsel a document he intended to use during examinations, so Patels attorney looked to where he was pointing and saw a two by two inch post-it pad with a note which read stretch and twist in 15 seconds. Patels attorney explained that within 15 to 20 seconds after Salazars attorney slipped this note in front of Salazar, she stood up in front of the jury and began to stretch and twist her body with a look of pain and anguish on her face. [Salazar] had been doing this through out the entire trial and it became readily apparent that [Salazar] was merely acting as a puppet for [Salazar]s counsel. Clearly, [Salazar]s counsel was attempting to mislead the Judge and the jury by having [Salazar] put on a show for the Judge and jury.

Along with a reply brief, Salazars attorney submitted his declaration, in which he stated that at no time during the trial did he place a document in front of his client and tap on it to bring it to Patels attorneys attention or for him to review it. He also denied instructing Salazar to make any exhibitions of pain or suffering, and Patels attorneys statements to that effect are unfounded and completely false. He further stated that Patels attorney misstated and falsely twisted his communication to Salazar, Patels attorney had no right to observe the note or interpret its content as it was attorney-client communication, and denied that Salazar left her seat from the completion of his closing argument to the conclusion of Patels attorneys closing argument to exhibit any pain or suffering to the jury as Patels attorney claimed in his declaration.

After oral argument on the motion, the trial court denied it.

DISCUSSION

Salazar contends the trial court erred in denying her motion for a new trial under Code of Civil Procedure section 657. The three grounds for new trial urged on appeal are (1) jury misconduct, (2) attorney misconduct and (3) inadequate damages. We need not address the first and third points because, as we shall explain, attorney misconduct requires reversal of the judgment.^[2]

Standard of Review

A new trial may be ordered on various statutory grounds. (Code Civ. Proc.,  657.) As relevant here, those grounds include irregularities in the proceedings, juror misconduct, and inadequate damages. (Code Civ. Proc., 657, subds. 1, 2, 5.) An order denying a motion for new trial is not independently appealable, but is reviewable on appeal from the underlying judgment. (People v. Ault (2004) 33 Cal.4th 1250, 1260-1261 [discussing general principles applicable to civil as well as criminal cases].)

Ordinarily a trial court has wide discretion in deciding a motion for a new trial, and the courts decision will be given great deference on appeal. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872 (Decker).) However, when we review an order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial. (Id. at p. 872.)

Attorney Misconduct

Salazar contends the trial court erred in refusing to grant a new trial on the ground of opposing counsels misconduct during closing argument. Misconduct of counsel constitutes an irregularity in the trial proceedings and thus is a ground for new trial. (Decker, supra, 18 Cal.3d at p. 870.) To prevail on a claim of opposing counsels misconduct, a litigant must demonstrate both offending behavior and prejudice. It is only when the conduct of counsel consists of a willful or persistent effort to place before a jury clearly incompetent evidence, or the statements or remarks of counsel are of such a character as to manifest a design on his part to awake the resentment of the jury, to excite their prejudices or passions against the opposite party, or to enlist their sympathies in favor of his client or against the cause of his adversary, and the instructions of the court to the jury to disregard such offered evidence or objectionable remarks of counsel could not serve to remove the effect or cure the evil, that prejudicial error is committed.... (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 210, italics omitted.) In assessing prejudice, the relevant factors include the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judges control of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances. (Id. at p. 211.) Generally a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished. (Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174, 178.)

As explained above, we review the entire record to independently determine whether the complaining party was prejudiced by the denial of a new trial motion on this ground. (Decker, supra, 18 Cal.3d. at p. 872.) But in undertaking that review, we bear in mind that the trial court, in denying the new trial motion, impliedly found no misconduct or at least no prejudice. A trial judge is in a better position than an appellate court to determine whether a verdict resulted wholly, or in part, from the asserted misconduct of counsel and his conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong. (West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 863.)

Salazar asserts defense counsel committed misconduct when he divulged to the jury the contents of the note her attorney passed to her during closing arguments and he continued to argue, even after the court admonished him not to cross the line, that the case was a setup. We agree.

Attorneys have wide latitude to discuss the case in closing arguments. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795 (Cassim ).) The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury. [Citations.] Counsel may vigorously argue his case and is not limited to Chesterfieldian politeness. [Citation.] An attorney is permitted to argue all reasonable inferences from the evidence.... [Citation.] Only the most persuasive reasons justify handcuffing attorneys in the exercise of their advocacy within the bounds of propriety. (Id. at pp. 795-796.)

Even though an attorneys latitude during closing argument is wide, it is not without boundaries, and an attorney who exceeds those boundaries commits misconduct. (Cassim, supra, 33 Cal.4th at p. 796.) Our Supreme Court provided examples of such excesses in Cassim, [w]hile a counsel in summing up may indulge in all fair arguments in favor of his clients case, he may not assume facts not in evidence or invite the jury to speculate as to unsupported inferences. [Citation.] Nor may counsel properly make personally insulting or derogatory remarks directed at opposing counsel or impugn counsels motive or character. [Citation.] Additional examples abound; these are but a few. (Id. at p. 796.)

Patels attorneys closing argument violated both of these prohibitions. By revealing to the jury the contents of the note Salazars attorney passed to her, which had not been admitted into evidence, and speculating as to its meaning, he engaged in prohibited conduct of assuming facts not in evidence and inviting the jury to speculate regarding unsupported inferences. (See Malkasian v. Irwin (1964) 61 Cal.2d 738, 747.)

Not only did defense counsel argue evidence that was not before the jury, he also intentionally disclosed an attorney-client communication. Clearly any note passed between Salazar and her attorney during trial is an attorney-client communication. (Evid. Code, 952, 954.) Patel does not contend otherwise. Instead, Patel contends that because the note was placed in clear view and Salazars counsel tapped on it to attract attention, the communication either was not confidential, and therefore not protected by the privilege, or if confidential, the privilege was waived.

As Patel states, a communication is not privileged if the facts show that the communication was not intended to be kept in confidence. (People v. Gomez (1982) 134 Cal.App.3d 874, 879 (Gomez).) Here, the facts related by Patels attorney show that he read the note after Salazars attorney tapped on the table and pointed at it. Although the note may have been within his view, there is nothing in the record to suggest that Patels attorney intended to show the note to Salazars attorney or that either Salazar or her attorney did not intend the note to be kept in confidence. This is not a situation as in Gomez, the case on which Patel relies, where the court found the privilege regarding marital communications did not apply to threats the defendant made against his wife in the presence of others, as the facts showed the defendant did not intend to keep the threats confidential. (Id. at pp. 879-880.)

Neither was the privilege waived. The holder of an attorney-client privilege waives the privilege if he or she without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege. (Evid. Code, 912, subd. (a).) A waiver is an intentional relinquishment of a known right. (Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 211.) Inadvertent disclosure without the subjective consent of the holder of the privilege is not a waiver under California law. (State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 652-654 (WPS).) According to Patels attorney, he only looked at the note after Salazars attorney tapped his finger on the table. Thus, it was Salazars attorneys conduct that brought the note to Patels attorneys attention. Assuming this was what occurred, at best, it was an inadvertent disclosure by Salazars counsel. Therefore, no waiver occurred.

Patel next contends the attorney-client privilege did not apply because the crime fraud exception set forth in Evidence Code section 956 nullified the privilege. That section provides that there is no privilege if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud. (Evid. Code, 956.) To invoke the crime fraud exception, the proponent must make a prima facie showing that the services of the attorney were sought or obtained to aid someone in committing a crime or fraud. (Ibid.; BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1262.) A court may not require disclosure of information claimed to be privileged in order to rule on a claim of privilege. (Evid. Code, 915, subd. (a); State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 645.)

Because the note was privileged, Patel cannot rely on its contents to establish the crime fraud exception. Patel proffers no other evidence to establish her prima facie case; instead, she makes the bald assertion that the endeavor was to collect monies for injuries unrelated to the accident through fraud and perjury. The problem with this argument is that there was evidence that the accident caused Salazars back injury, no evidence was presented that Salazar did not suffer from back pain, and nothing in the record suggests that anyone committed perjury -- the experts merely had a difference of opinion regarding the cause of Salazars back pain. Most importantly, Patels attorney never sought a ruling from the trial court before divulging the notes alleged contents regarding the application of the privilege; instead, he took it upon himself to inform the jury about what he thought the note meant.

Patel attempts to minimize her attorneys misconduct by asserting he was just commenting on Salazars actions and demeanor during trial, citing cases which found proper closing arguments in which the prosecutor commented on the defendants demeanor during the penalty phase of a capital trial. (See People v. Wharton (1991) 53 Cal.3d 522, 596; People v. Haskett (1990) 52 Cal.3d 210, 247.) If Patels attorney had commented only on Salazars demeanor, we might be inclined to agree with him. But Patels attorney did much more than that he used a privileged attorney-client communication, which had not been admitted into evidence, to argue that the case was, in his words, a setup.

In an attempt to justify her attorneys conduct, Patel argues that since he had learned Salazar and her attorney were attempting to mislead the Judge and the jury, he simply attempted to take reasonable remedial measure to disclose the fraud to both the Judge and the jury as stated in rule 3.3(b) of the American Bar Association Model Rules of Professional Conduct. This rule states, [a] lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (ABA Model Rules Prof. Conduct, rule 3.3(b).)

While this rule does permit the disclosure of the allegedly fraudulent conduct to the tribunal, what Patel ignores is that tribunal is defined, in pertinent part, as a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. (ABA Model Rules Prof. Conduct, rule 1.0(m).)^[3] From the text of rule 3.3(b) and the definition of tribunal, we are not convinced the rule sanctions disclosure to a jury as a reasonable remedial measure. For that reason, Patel cannot hide behind the cloak of these rules to justify her attorneys conduct in using what he perceived to be an abuse of process to further his clients interests.^[4] Had Patels attorney truly been concerned that a fraud was being perpetrated on the court, his recourse was to bring the matter to the courts attention outside the jurys presence. Instead, Patel immediately addressed his comments to the jury, stating that you folks need to know whats been going on, thereby demonstrating an intent to use the note to his advantage.

In sum, we conclude that Patels attorney committed misconduct when he revealed to the jury what he thought were the notes contents and used those contents to assert that Salazar was acting like she was hurt in response to the note. The issue then is whether the misconduct resulted in prejudice to Salazar. This requires us to determine whether it is reasonably probable Salazar would have achieved a more favorable result in the absence of that portion of Patels attorneys closing argument now challenged. (Cassim, supra, 33 Cal.4th at p. 802.) Examining the entire case, including the evidence, the jury instructions and the entirety of Patels attorneys closing argument, we conclude his disclosure of the notes alleged contents and his statements based on it prejudiced Salazar.

We first note that Salazars attorney clearly objected to the comments and requested they be stricken. The court sustained the objection and struck the remarks. Before the jury began its deliberations, Salazars attorney requested an admonition, but the court declined to give one. Instead, the court stated it had admonished the jury at the time that the conduct was to be disregarded, the jury repeatedly was instructed that what attorneys say is not evidence, and the court commented to the jury there was nothing in the record regarding attorney-client notes or discussion and an attorney has a right to talk to his client.

The record, however, does not corroborate the courts recollection. Instead, the court merely stated to Patels attorney when he first asked Salazar to show the jury the note that it didnt think thats appropriate, and after the court sustained Salazars objection to Patels attorneys comments and ordered them stricken, merely told Patels attorney not to cross the line and that Salazars attorney could communicate with his client. The court did not directly address the jury during this exchange or remind the jury that the note was not part of the record. Patels attorney exacerbated the situation by continuing to impliedly refer to the note when he argued that the case was a setup and he saw what was happening this morning. While the court orally had instructed the jury the day before that what the attorneys say during trial is not evidence and reminded the jury that day in the midst of Salazars attorneys closing argument that the arguments of counsel are not evidence, it did not provide a similar reminder to the jury following Patels attorneys improper argument. Although Patel points out that Salazars attorney reminded the jury that what Patels attorney stated was not before them, the trial court did not affirm this statement.

In our view, the courts instructions failed to ameliorate the serious damage Patels attorney wrought. From the outset of the trial, Patel asserted she was not responsible for treatment Salazar received after seeing her family doctor three days after the accident, claiming that Salazar did not require further medical treatment. Patel attempted to show that Salazar did not require further medical treatment by challenging the veracity of Salazar and her witnesses. Patels attorneys intent to impugn Salazars credibility about her injury is shown by his claim in his opening statement, to which the court sustained Salazars objection, that the evidence would show that Salazar intended to sue my client right out of the gate. As Salazar points out, throughout the trial, Patels attorney made innuendos of dishonesty by Salazar, her family and her health care providers. For example, he asked Salazars husband and mother, who testified regarding the impact of the injury on her life, whether they would do whatever they could to help Salazar. He challenged Salazar about why she got an incomplete in a history class she was taking at the time of the accident. He got Dr. Petraglia to admit that he did not know if he had received or reviewed all of Salazars medical records, but presented no evidence of records that existed that Dr. Petraglia failed to review.

While it certainly is permissible to challenge the credibility and biases of witnesses and parties, as well as the foundation for an experts opinion, that Patels attorney attempted to do so in this case illustrates the prejudice that his closing argument caused. Patels primary theory of the case was that Salazar was faking her back pain and she brought this lawsuit to try to obtain a windfall from the accident. The jurys verdict was the end product of a trial in which the question of whether Salazars back injury was the result of the accident was the most critical factual issue in the case. The medical testimony on this point was in conflict. The evidence Patels attorney revealed in his closing argument, namely that Salazar was acting as if she were in pain throughout the trial because her attorney was passing her a note instructing her to do so, supported both his theory that she was faking her injury and the defense doctors conclusion that the accident did not cause her injury. The jurys verdict shows that the jury accepted either, or both, assertions, as they only awarded economic damages nearly equivalent to her lost wages, the medical expenses she incurred through her visit with Dr. Wells, and a token amount in non-economic damages. Patels attorneys revelation of the notes purported content during closing argument interjected improper evidence at this most critical point in the case.

Patel contends the verdict does not reflect any prejudice because the jury did not return the verdict her attorney asked for, which was one dollar, and the amount awarded showed the verdict was based on reason, not passion. The question, however, is not whether the verdict was reasonable, but whether it is reasonable to conclude a verdict more favorable to Salazar would have been reached but for the error. (Cassim, supra, 33 Cal.4th at p. 800; Garden Grove School Dist. of Orange County v. Hendler (1965) 63 Cal.2d 141, 144.) Here, the verdict reflects the jurys decision that Salazar was not entitled to recover for her back pain. In the absence of Patels attorneys revelation of the note and his claim that it showed Salazar was putting on an act for the jury, it is reasonable to conclude that a verdict more favorable to Salazar would have been reached. Moreover, that the jury returned the verdict it did shows that it in fact did accept Patels attorneys closing argument, i.e., that Salazar was not really injured.

Patel next argues that the jury foremans declaration does not demonstrate prejudice because the declaration does not state how the closing argument affected the verdict. Patel cites no authority, however, for the proposition that juror declarations are required to establish entitlement to a new trial based on attorney misconduct. Moreover, the foremans declaration shows that at least one juror believed that Salazar was not injured. In that respect, the declaration shows that Patels attorneys closing argument could serve only to confirm this belief and led directly to the jurys verdict.

While as Patel points out we usually defer to the trial courts ruling on a new trial motion, based on the facts and circumstances of this case we conclude counsels misconduct was prejudicial and requires reversal. Since we conclude Salazar is entitled to a new trial based on attorney misconduct, we do not address her other grounds for her new trial motion, namely juror misconduct or inadequacy of damages.

DISPOSITION

The judgment is reversed. Salazar is awarded her costs on appeal.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Wiseman, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.

^[1] According to Dr. Zenimura, the offices policy regarding potential patients involved in accidents is to either have them pay a co-pay, pay as they go or have an attorney sign a lien.

^[2] Before Salazar filed her opening brief, she filed a motion to augment the appellate record. Patel filed written opposition to the motion, along with a request for judicial notice of various documents that are part of this courts file. By orders dated July 25 and 27, 2006, we granted the motion to augment but deferred ruling on the request for judicial notice pending consideration of the appeal on its merits. A review of the request shows that judicial notice was requested for the purpose of opposing the motion to augment. As the motion was granted, we now deny the request for judicial notice as moot.

^[3] The rule further provides that [a] legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a partys interests in a particular matter. (ABA Model Rules Prof. Conduct, rule 1.0(m).)

^[4] Moreover, we note that the ABA Model Rules of Professional Conduct do not establish ethical standards in California, as they have not been adopted in California and have no legal force of their own. (WPS, supra, 70 Cal.App.4th at pp. 655-656.)