Filed 1 / 20 / 21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

RODOLFO PLASCENCIA et al.,

Plaintiff s and Respondents

,

v.
CHARLES GYNN DEESE et al.,

Defendant s and Appell ants

. 2d Crim. No. B 299142 (Consolidated with No. B299925) (Super. Ct. No. 56

- 201 5

- 00475756

- CU

- PO

- VTA ) (Ventura County)

One of the institutional functions of the Californi a Court of Appea l is to opine on whether or not an error at trial has
resulted i n a miscarriage of justice. (Cal. Const.

, art. VI, § 13.) 1 Here, there has been a miscarriage of justice and we must vacate the $30 million d ollar non

- economic damage award in this highway fatality case.

1 “ No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulte d in a miscarriage of justice. ” (Cal. Const.

, art VI , § 13.)2 In personal injury and wrongful death action s ,

no neconomic damages are governed by Proposition 51

, which
eliminate d the pe rceived unfairness of imposing “all the damage”
on defendants who are “ found to share [only] a fraction of t he
fault.” ( Civ. Code, § 1431.1, subd. (b); DaFonte v. Up

- Right

, Inc

. (199 2) 2 Cal.4th 593, 603 ( DaFonte ) .) A defendant is liable only for the percentage of noneconomic damages that corresponds

to his or her proportionate fault. (Civ. Code, § 1431.2, subds. (a) & (b)(2); Soto v. BorgWarner Morse TEC Inc. (2015) 239
C al.App

. 4 th 165, 202.) Stated another way, “ a ‘defendant[’s]’ liability for noneconomic damages cannot exceed his or her proportionate share of fault as compared with all faul t responsible for the plaintiff’ s injuries , not merely that of ‘defendant[s]’ present in th e lawsuit.” ( DaFonte

, supra , at p.
603 .) Here, the jury was not permitted to consider the comparative fault of defendants who settled before trial. Reversal is required for this reason alone.

The second reason for reversal is that respondents’
counsel engaged in prejudicial misconduct

. Appellants contest a $30 million award of noneconomic damages

. The jury found appellants 40 percent at fault and the motorist who made an illegal U

- turn 60 percent at fault. In final argument

, respondents’ counsel

, re ferring to appellant Deese

, told the jury :

“ Y ou can’t stone him to death” but you can “make him pay.” In violation of a pretrial in limine order p rohibiting counsel from
invo king the Golden Rule

, respondents’ counsel asked the jury to

“ im agine” it was “ y ou r daughter” and “ some guy brok e a rule that
he knew he couldn’ t break . . . a nd your daughter is taken away.” 2

2 Before trial , the trial court ordered that “ plaintiffs will not argue that the jury should award wrongful death damages based3

Finally , r espondents ’ attorney accused appellants and their attorney of “ lying, ” of delaying settlement with respondent s for five years , and o f presenting a defense that is a “fraud.” This was misconduct and it denied appellants a fair trial. (Cal. Const., art. VI, § 1 3

. ) Facts and Procedural History

On A p ril 19, 2014, Anita Newcomb made a n illegal U

turn on SR 126
, a four

- lane highway

, as sh e left Francisco’s fruit
stand on the south side of the highway

. Respondent s ’ 20

- year

- old daugh t er, Jocelyn e , swerved to avoid hitting Newcomb

. Jocelyn e lost control of her Camry and crash ed into the back of appellant s ’ 80,000

- pound diesel tractor

- trai l e r , which Deese had parked on
the south side of the highway near the fruit stand.

M inutes b efore the collision, Deese testified that he smelled hot engine oil and parked the diesel tractor

- trailer three feet to the right of the highway fog line

. Deese be lieved it was an

emergency . He opened the engine hood but sa w no oil leaks

. After concluding there was no emergency, Deese left the truck
unattended with his co

- driver asleep in the truck cab and walked to the fruit stand to buy strawberries. 3 Seconds l ater, Jocelyne

on what jurors would feel they would want as compensation if they had suffered the loss.”

3 At trial, Deese stated it was a roadside emergency and that he opened the engine hood and inspected the engine. That was disputed by respondents. The fruit stand surveillance video showed Deese park the truck and walk back to the fruit stand. No one opened the engine hood, inspected the engine or truck wheels, or put out reflective triangles to warn motorists. Nor did Deese tell the company dispatcher he was making an emergency stop. Truck experts testified that the standard of care was not to4

swerved to a v oid the U

- turn driver

, skid ded for three seconds

across the highway, and hit the back of the tractor

- tr ailer

. Jocelyne was ai rlifted to the hospita l and died a month later.

Pretrial Techbilt Settlements
R espondents sued f

or w rongful dea th damages based

on theories of negligenc e , negligence per se

, and dangerous
cond i t i on of public and private prope r ty. Before trial, County of
Ventura was dismissed

. State of Califo rnia settled for $ 1.5 million, and the U

- turn driver and the o wner of Newcomb’ s vehicle settled for $115,000

. Francisco ’ s Fruit Stand and MMFG, LLC (the owner of the fruit stand parking l ot ) settled for $825,000. Over appellants’ objec tion, the trial court found the settlements were in good faith (Code Civ. Proc., § 877.6 ; Tech

Bilt

, Inc. v. Woodward

- Cly d e & Associates (1985) 38 Cal.3d 488

, 506 )

. In Limine Order on Comparative Fault Evidence

S everal motions in limine were argued the first day of
trial . The trial court ruled that appellants could not present
evid ence o n the comparative fault of the State of California, the
f r uit stand

, or the parking lot owner because appellants , in

respon ding to contention interrogatories

, claimed the U

- turn driver was the sole cause of accident. The interrogatory answers
did no t mention the State of California, the fruit stand, or the parking lot owner even though the comparative fault of third parties was alleged as affirmative defense s three and four.

Jury Instructions and Special Verdict The jury was instructed to conside r only the comparative fault of the U

- turn driver and appellants

. The jury

park on the side of a highway in a non

- emergency situation. If a truck driver did that, the truck would be a “sitting duck.”5

awarded $30 million wrongful death damages, finding the U

- turn driver 60 percent negligen t and appellants 40 percent negligent. 4
The trial court , in denying motion s for new trial a nd judgment notwithstanding the verdict , stated th e in limine order was made
because appellants “ sandbagged ” respondents in discovery.
When a ppellants respon d ed to c ontention interrogatories in 2016
the y “ point [ed] the [ ir ] finger [ s ] at Newcomb

. . . . [¶]

. . . [N] otwithstanding several opportunities, [they] never po inted the finger once at the State of California or MMFG or Francisco’ s Fruit, and . . . [la id ] in the reed s for an extensive period of years of litigation

. . . without reopening dis covery t o supplement

responses

. . . . [Y] ou might not have a duty to do it, but you certainly ha [d] an opportunity to do it to pre v ent surprise

. . . . [¶] [¶] And you can’ t under the rules of discove ry , you can’t lay in the reeds, say you’ re not contending s o mething , and then change it all around at the l ast minute. It just doesn’ t work like
that

. ” Proposition 51

– the Universe of Tortfeasors

“ Generally, a trial court’ s ruling on an in limine
motion is reviewed for abuse of discretion. [Citation.] Howev er, when the issue is one of law, we exercise de novo review. [Citation.]” ( Condon

- Johnson & Associates

, Inc. v. Sacramento Municipal Utility Dist. (2007) 149 Cal.App.4th 1384, 1392.) The question here is whether the in limine order and instructions
vio late Proposition 51 ( Civ . Code, § 1431 et al. ) which requires

4 The trial court amended the $12 million judgment to add $2.37 million prejudgme nt interest because appellant s failed to accept respondents’ $1 m illion pretrial statutory offer to settle the case. (Code Civ. Proc., § 998.)6

that the award for noneconomic damages be limited to the

propor tionate fault of each tortfeasor. Pursuant to Proposition
51 , the jury must apportion the fault of each tortfeasor

, including
defe ndants who settle before trial. ( Vollaro v. Lis p i (2014) 224 Cal.App.4th 93, 100, fn. 5.) The jury considers “‘ ‘ the relative

re sponsibil ity of various parties for an injury (whether their

re sp onsibility for th e injury rests on negligence, strict liab i lit y, or other theories of responsib i lity ), in order to arrive at an ‘ equitable

appo rtion ment or allocation of loss.’” [Citation.]’ [Cita t ion s .]” ( Pfeifer v. John Crame

, Inc. (2013) 220 Cal.App.4th 1270, 1285. )

Here t he jury awarded $30 million in damag es but was not permitted to co nsider the comparative fault of the settling defendants

, i.e.

, the State of California, the fruit stand,
and M MF G. Under Proposition 51 (Civ. Code, §§ 1431 to 1431.5), appellants are “ only responsible for [their] comparative

p ercentage of fault for the noneconomic damages

. . . .” ( Roslan v.
Permea

, Inc. (1993) 17 Cal.App.4th 110, 112 ( Roslan ) .) “[I]t is error for a trial court not to allow the jury to assess the comparative fault of defend ants who settled before trial. [Cit ation.] Likewise, it is error to exclude evidence of the culpability of defendants who settled before trial to allow the jury
to make that assessment. ( Citation.] ” ( Romine v. Johnson
Controls

, Inc. (2014) 224 Cal.App.4th 990, 1011.) Although th e $30 mil lion award was apportioned to reflect the comparative
fault of the U

- turn driver, “ it was not reduced by the comparative
fault of the [other] settling defendants. This error mandates
reversal. ” ( Roslan

, supra, at p. 112.) No Continuing Duty to Supplem ent Interrogatory Answers Respondents argue that appellants were estopped to assert the comparative fault of the settling defendants, by the ir7

responses to the contention i n ter r ogat ories

. A party, however, has no duty to amend or supplement his or her in terrogatory

answers

. ( Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1328. ) It is “‘ urban legend ’ that ‘ a responding party has an affirmative duty to supplement responses to interrogatories if
and when new information comes in to that party’ s

p ossession. . . .’ [Citation.] ” ( Browne v. Turner Construction
Co. (2005) 127 Cal.App.4th 1334, 1349.) Even if appellants

“ violated a duty to supplement [their] responses it would not ordinarily justify the exclusion of evidence in the absence of

a willf ul violation of an order for disclosure. [Citation.] ” ( Ibid ;

see , e.g., Kuhns v. State of California (1992) 8 Cal.App.4th 982, 985 [state willfully refused to obey court orders compelling discovery; trial court imposed an issue sanction on design
immunit y].)
R espondents did not file a motion to compel further discovery responses or a motion for an issue

- evidence sanction

, and knew the comparative fault of the settling defendants was the elephant in the room

. The First Amended Complaint alleged
that th e State of California, the fruit stand, and MM F G owned
and maintained a dangerous property condition that contributed
to the collision. 5 Appellants alleged c ompar a tive fault as an

5 Appellants ’ reliance on Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5 th 438 , is misplaced. The re, the complai nt and plaintiff’ s interrogatory answers stated that Coldwell Banker was negligent in disclosing the condition of a swimming pool diving board. Plaintiff/buyer stood on the diving board to look over a fence and the diving board collapsed, causing plaintif f to fall into the empty pool. (Id. at pp. 440

- 441.) We affirmed the summary judgment on the ground that “[p]laintiffs cannot rely on their unpled, undisclosed8

affirmative defense and opposed the Tech

- Bilt motions on the

g round that th e settlements were grossly disproportionate to the

sett l ing defenda nts’ comparative fault

. C omparative fault was discussed in the trial brief s and before trial. In o pposing the fruit
stand’ s and MMFG ’ s motion s for summary judgment, respondents argued th a t the parking lot was located “ entirely within the public right of way ” and “ [h]ardly a more dangerous configuration can be conceived . . . .” Respondents claim t hey were prejudiced by appellant s ’ terse discove ry responses , but
settled with the fruit stan d and parking lot owner for a large sum of money well before trial , and for a reason

. R espondents’ truck expert (Lew Brill) s aid the parking lot was “ a calamity of

. . . confusion . . .

. [T]here ’ s a lot of cars in there, a lot of activity
that’ s happeni ng there.” Before the collision, there were near
misses involving vehicles leaving and entering the parking lot

, and th e fruit stand was cited for violating road setback and parking requirements. The S tate was aware of the problem . It
demolished the fru it stand in 1993 to widen the highway and
staked out the place where the fruit stand and parking lot were
rebuilt , i.e., in the public right of way

.

Respondents argue that contention interrogatories

are necessary to “ ‘ set at rest ’ ” issues not genuinely disputed. ( Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 281. ) N o published opinion has stated that terse responses

to contention interrogatories trump a Proposition 51 proportionate fault defense

. Before an issue

- evidence preclusio n

. . . theory that Coldwell is liable for failing to remedy, warn, or otherwise protect Jacques from the dangerous condition of the empty pool.” ( Id . at pp. 445

- 446.)9

order is made, there must be a bad faith and willful violation of an existing discovery order

. Johnson v. Pratt & Whitney Canada

, Inc. (1994) 28 Cal.App.4th 613 illustrates the principle. There,
Pratt failed to respond to 50 court

- ordered discovery req uests in a wrongful death action. The trial court struck Pratt’ s answer on liab i lity ( i d . at p. 621) and granted summary adjudication on liability based on an earlier issue

- determination and evidence

preclusion order. ( Id . at pp. 621

- 622.) On the first day of trial, the trial court granted a motion in limine

, prohibiting Pratt from presenting evidence of third party comparative fault . The jury awarded $4.8 million damages. The C ourt of A ppeal affirmed, holding that Civil Code section 1431.2 could not b e used as a shield to protect a defendant from the consequences of a flagrant discovery dereliction and reward Pratt for its bad faith discovery
tactics. ( Johnson

, supra , at p. 627.)

Unlike Johnson

, r espondents knew the comparative
fault of the settl ing defendants was a contested issue but did not
ask for supplement al interrogatory answers, propound requests
for admissions

, o r file a motion to impose an issue

- evidence
sanction. This is significant. Unless there has been “ a violation of an order compelli ng an answer or further answer, the evidence sanction may only be imposed where the answer given is willfully false

. The simple failure to answer, or the giving of an evasive answer, requires the propounding party to pursue an order compelling an answer o r further answer

— otherwise the right to
an answer or further answer is waived and an evidence sanction
is not available. ” ( Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334.) “What in limine motions are not designed to do is to replace the dispositive mo tions prescribed by the Code10

of Civil Procedure .” (

Amtower v. Photon Dynamics

, Inc. (2008) 158 Cal.App.4th 1582, 1593.) “The better practice in nearly every case is to afford the litigant the protections provided by trial or by the statutory processes.” ( Id. at p. 1588; Finley, Cal. Motions in Limine (The Rutter Group 2019) ¶ 1: 1, p. 1

- 4.) Here, the in
limine order infringe d on appellants’ statutory right to have the jury determin e the comparative fault of the other tortfeasors. The jury was instructed to consider the comparative fault of the
U

- turn driver and appellants but no one else

. The trial court said: “I got to tell you, it’ s a big tag item for m e to tell somebody that you can’ t present evidence with regard to comparative fault. ”
We a re compe lled to reverse. “ Each defendant shall be liable only
for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rende red against that
de fendant for that amount.” (Civ . Code, § 1431.2, subd. (a) .) Golden Rule Argument and Ad Homine m Attacks During final argument, respondent s ’ counsel told the jury that counsel is “not being straight with you,” and this is “ not the time to make up lies and to tr y to cheat your way to justice

. ”
A ppellan t s and their attorney spent the last five years “ actively evading responsibility. And not just activel y evading it, but [ by ] lying. ” “ I called them lies in the beginning, but . . . they have
blow n into even bigge r things b ecause it is a fraud.”

Respondent s ’ attorney asked the jurors to “ [ j ] ust imagine that is your daughter

, ” and to image “ t hat constant love and connection between you and your daughter

, ” and that “your daughter is taken away.” Counsel argued that Joc elyne was like
a hundred

- million

- dollar Picas s o paint ing and to “ [ i ] magine you11

have this Picasso of a human being.” “She doesn’t exist anymore.” After the jury returned the $30 million verdict, appellants moved for new trial based on, among other things

, excessive damages

. Denying the motion, the trial court acknowledged “ [ i ] t ’ s inappropriate to . . . make an ad hominem attack against the other lawyer for lying, and then to talk about [ how] it’ s somehow not okay to try the case and to not settle it
earl ier .” The court found the issue was waived because no objection was made and attorney misconduct “ was a tangential argument related to excessive damages

. ” “ ‘ Moreover, even if [appellants] had not w ai ved their objections to the commen ts of [respondents’ ] counsel in closing argument, t he Court finds that any such comments could not have been prejudicial to this case. ’ ”

The $30 million verdict is so large that it shocks the conscience and suggests passion or prejudice on the part of the jury. ( Burchell v. Faculty Physicians & Surgeons etc. (2020) 54 Cal.App.5th 515, 527.) Jocelyne lived at home, was not employed , was contemplating marriage, and was still attending fashion design school. “ We may consider not only the amount of the award, but also other ‘“ indications in the record that the fact finder was influenced by improper considerations, ”’ such as

‘ inflammatory evidence, misleading jury instructions, improper argument by counsel, or other misconduct. ’ [Citation.]” ( Ibid .)
E ach case must be decided on its own facts and circumstances. ( Ibid .)
Here

, the Golden Rule argument and ad hominem
attack s on defense counsel were designed to, and did, impugn the integrity of appellants’ trial counsel. Cases should be decided upon the facts and the law only

. D efense counsel did not lie and12

did not commit a fraud by exercising the right to trial

. “ Y ou can ’ t stone him to death” but you can “make him pay.” The inference
was that appellants’ failure to settle the case had caused Jocelyne’ s parents grief or sorr ow , none of which is recoverable in a wrongful death action. (Code Civ. Proc., § 377.61; Krouse v.
Graham (1977) 19 Cal.3d 59, 69 .)

“ [E] ven in the absence of an objection and request for admonition, where there are flagrant and repeated instances of
mi sconduct, an appellate court cannot refuse to recognize the
misconduct.” ( Simmons v. Southern Pac. Transportation
Co. (1976) 62 Cal.App.3d 341, 355 ( Simmons ) .) When the attorney misconduct is egregious and a motion for new trial has
been denied, the defe rential abuse of discretion standard of review does not apply to the question of prejudice. ( Los Angeles

v. Decker (1977) 18 Cal.3d 860, 872.) Prejudice exists if it is reasonably probable that the jury would have arrived at a verdict
more favorable to t he moving party in the absence of the irregularity or error. ( Ibid. ; s ee Garden Grove School District v.
Hendler (1965) 63 Cal.2d 141, 143 [prejudicial misconduct where plaintiff’ s attorney resorted to insulting and derogatory
characterizations of defenda nts, and impugn ed the motives and purpose of defendants]; Simmons

, supra, at pp. 351

- 357 [counsel accused defendant of cheating, stealing, and perjury ] ; Kenworthy v. State of C alifornia (1965) 236 Cal.App.2d 378, 397

- 399 [misconduct “ was a deliberate attem pt to administer poison, no single dose of which was lethal but with an accumulative effect inevitable and realized”]

. ) “ The question is not whether the award is a reasonable one, but whether it is reasonable to
conclude that a verdict more favorable to d efendants would have13

been reached but for the error. (Cal. Const., art. VI, § [13] .) ” ( Gard en Grove School Dist.

, supra , at p. 144.)

We have reviewed the record and conclude the misconduct was too serious to be cured by an objection and
admonition. ( Simmons

, supra , 62 Cal.App.3d at p. 355

. ) The record leaves no doubt it was carefully contrived and calculated to arouse and inflame the jury to award a large verdict. ( See Love v. Wolf (1964) 226 Cal.App.2d 378, 3 94

. ) The Golden Rule argument that the jurors sho uld “imagine” it was their daughter
that was taken away

, and that appellants’ trial attorney had lied and delayed settlement to commit a fraud was prejudicial and require s reversal. “The law, like boxing, prohibits hitting below
the belt. The b asic rule forbids an attorney to pander to the prejudice, p assion or sympathy of the jury. [Citation.] ” ( Martinez v. Department of Transportation (2015) 238 Cal.App.4th 559,
566 .) Appellants urge us to reverse the judgment as to both liability and dama ges, but the jury’s finding of liability is supported by s ubstantial evidence. Respondent s ’ expert witness opined that Deese fell below the standard of care when, having determined no emergency existed, he left the truck unattended on the side of the high way. Appellants’ trucking expert conceded the point when he testified, “You’re not supposed to park on the shoulder of a highway unless you have an emergency.” Deese himself admitted there was no emergency when he left the truck to buy strawberries and t hat his conduct in leaving the truck parked on the side of the highway breached the standard of care.
This is substantial evidence from which a reasonable jury could find that appellants bear some portion of the fault for these tragic

events.14 The error r equiring reversal here is with regard to the judgment on damages. First, the trial court erroneously excluded evidence of the comparative fault of the settling
defendants. Second, no substantial evidence appears to support the amount of the damages award , an amount that shocks the conscience and appears to have been influenced by the misconduct and improper argument of respondents’ counsel. Under these circumstances, the appropriate course is to reverse the judgment with respect to the award of damages a nd to
remand for a new trial to determine both the amount of the damages award and its apportionment based on the comparative
fault of the universe of tortfeasors . (See, e.g., DaFonte

, supra , 2 Cal.4th at p. 603; Corenbaum v. Lampkin (2013) 215 Cal.App.4t h 1308, 1334, fn.16; Roslan

, supra , 17 Cal.App.4th at p. 113.) Disposition
The judgment is reversed as to the award of damages
and the matter is remanded with directions to conduct a new trial limited to determining the amount of the damages award
and its apportionment among all defendants, including those who
settled before trial

. Appellants are awarded costs on appeal.

CERTIFIED FOR PUBLICATION

.

YEGAN, J

.

We concur:

GILBERT

, P. J.

TANGEMAN , J.Matthew P. Guasco, Judge

Superior Court County of Ventura

______________________________ Clark Hill, Pamela A. Palmer, David L. Brandon and Ryan C. McKim; Gutierrez, Preciado & House, Arthur Preciado and Arthur Javier for Defendants and Appellants.

The Homampour Law Firm, Arash Homam pour and Scott E. Boyer; The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiffs and Respondent.