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.,

 Plaintiffs and Respondents, 

v.

CHARLES GYNN DEESE et al., 

 Defendants and Appellants.

2d Crim. No. B299142

(Consolidated with No. 

B299925)

(Super. Ct. No. 56-2015-

00475756-

CU-PO-VTA)

(Ventura County)

One of the institutional functions of the California 

Court of Appeal is to opine on whether or not an error at trial has 

resulted in 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 dollar 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 resulted in a miscarriage of justice.” 

(Cal. Const., art VI, § 13.)
2

In personal injury and wrongful death actions, 

noneconomic damages are governed by Proposition 51, which 

eliminated the perceived unfairness of imposing “all the damage” 

on defendants who are “found to share [only] a fraction of the 

fault.” (Civ. Code, § 1431.1, subd. (b); DaFonte v. Up-Right,

Inc. (1992) 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 

Cal.App.4th 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 fault 

responsible for the plaintiff’s injuries, not merely that of 

‘defendant[s]’ present in the 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, referring to appellant Deese, told the jury: 

“You can’t stone him to death” but you can “make him pay.” In 

violation of a pretrial in limine order prohibiting counsel from 

invoking the Golden Rule, respondents’ counsel asked the jury to 

“imagine” it was “your daughter” and “some guy broke a rule that 

he knew he couldn’t break . . . and 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 based 
3

Finally, respondents’ attorney accused appellants and their 

attorney of “lying,” of delaying settlement with respondents for 

five years, and of presenting a defense that is a “fraud.” This was

misconduct and it denied appellants a fair trial. (Cal. Const., art. 

VI, § 13.)

Facts and Procedural History

On April 19, 2014, Anita Newcomb made an illegal Uturn on SR 126, a four-lane highway, as she left Francisco’s fruit 

stand on the south side of the highway. Respondents’ 20-year-old

daughter, Jocelyne, swerved to avoid hitting Newcomb. Jocelyne

lost control of her Camry and crashed into the back of appellants’

80,000-pound diesel tractor-trailer, which Deese had parked on 

the south side of the highway near the fruit stand. 

Minutes before 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 believed it was an 

emergency. He opened the engine hood but saw 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 later, 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 to 
4

swerved to avoid the U-turn driver, skidded for three seconds 

across the highway, and hit the back of the tractor-trailer. 

Jocelyne was airlifted to the hospital and died a month later.

Pretrial Techbilt Settlements

Respondents sued for wrongful death damages based 

on theories of negligence, negligence per se, and dangerous 

condition of public and private property. Before trial, County of 

Ventura was dismissed. State of California settled for $1.5 

million, and the U-turn driver and the owner of Newcomb’s 

vehicle settled for $115,000. Francisco’s Fruit Stand and MMFG, 

LLC (the owner of the fruit stand parking lot) settled for 

$825,000. Over appellants’ objection, the trial court found the 

settlements were in good faith (Code Civ. Proc., § 877.6; TechBilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 

506).

In Limine Order on Comparative Fault Evidence

Several motions in limine were argued the first day of 

trial. The trial court ruled that appellants could not present 

evidence on the comparative fault of the State of California, the 

fruit stand, or the parking lot owner because appellants, in 

responding to contention interrogatories, claimed the U-turn 

driver was the sole cause of accident. The interrogatory answers

did not 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 defenses three and four.

Jury Instructions and Special Verdict

The jury was instructed to consider 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 negligent and appellants 40 percent negligent.4 

The trial court, in denying motions for new trial and judgment 

notwithstanding the verdict, stated the in limine order was made 

because appellants “sandbagged” respondents in discovery. 

When appellants responded to contention interrogatories in 2016 

they “point[ed] the[ir] finger[s] at Newcomb. . . . [¶] . . .

[N]otwithstanding several opportunities, [they] never pointed the 

finger once at the State of California or MMFG or Francisco’s

Fruit, and . . . [laid] in the reeds for an extensive period of years 

of litigation . . . without reopening discovery to supplement 

responses . . . . [Y]ou might not have a duty to do it, but you 

certainly ha[d] an opportunity to do it to prevent surprise . . . . 

[¶] [¶] And you can’t under the rules of discovery, you can’t lay 

in the reeds, say you’re not contending something, and then 

change it all around at the last 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.] However, 

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 

violate Proposition 51 (Civ. Code, § 1431 et al.) which requires 

4 The trial court amended the $12 million judgment to add 

$2.37 million prejudgment interest because appellants failed to 

accept respondents’ $1 million pretrial statutory offer to settle 

the case. (Code Civ. Proc., § 998.) 
6

that the award for noneconomic damages be limited to the 

proportionate fault of each tortfeasor. Pursuant to Proposition 

51, the jury must apportion the fault of each tortfeasor, including 

defendants who settle before trial. (Vollaro v. Lispi (2014) 224 

Cal.App.4th 93, 100, fn. 5.) The jury considers “‘‘the relative 

responsibility of various parties for an injury (whether their 

responsibility for the injury rests on negligence, strict liability, or 

other theories of responsibility), in order to arrive at an ‘equitable 

apportionment or allocation of loss.’” [Citation.]’ [Citations.]” 

(Pfeifer v. John Crame, Inc. (2013) 220 Cal.App.4th 1270, 1285.) 

Here the jury awarded $30 million in damages but 

was not permitted to consider the comparative fault of the 

settling defendants, i.e., the State of California, the fruit stand, 

and MMFG. Under Proposition 51 (Civ. Code, §§ 1431 to 1431.5), 

appellants are “only responsible for [their] comparative 

percentage 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 defendants who settled before trial. 

[Citation.] 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 the

$30 million 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 Supplement Interrogatory Answers

Respondents argue that appellants were estopped to 

assert the comparative fault of the settling defendants, by their 
7

responses to the contention interrogatories. A party, however, 

has no duty to amend or supplement his or her interrogatory 

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 into that party’s 

possession. . . .’ [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 willful 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 

immunity].)

Respondents 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 the State of California, the fruit stand, and MMFG owned 

and maintained a dangerous property condition that contributed 

to the collision.5 Appellants alleged comparative fault as an 

5 Appellants’ reliance on Jacobs v. Coldwell Banker 

Residential Brokerage Co. (2017) 14 Cal.App.5th 438, is 

misplaced. There, the complaint 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 plaintiff 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, undisclosed 
8

affirmative defense and opposed the Tech-Bilt motions on the 

ground that the settlements were grossly disproportionate to the 

settling defendants’ comparative fault. Comparative fault was 

discussed in the trial briefs and before trial. In opposing the fruit 

stand’s and MMFG’s motions for summary judgment, 

respondents argued that the parking lot was located “entirely 

within the public right of way” and “[h]ardly a more dangerous 

configuration can be conceived . . . .” Respondents claim they 

were prejudiced by appellants’ terse discovery responses, but 

settled with the fruit stand and parking lot owner for a large sum 

of money well before trial, and for a reason. Respondents’ truck 

expert (Lew Brill) said the parking lot was “a calamity of . . . 

confusion . . . . [T]here’s a lot of cars in there, a lot of activity 

that’s happening there.” Before the collision, there were near 

misses involving vehicles leaving and entering the parking lot,

and the fruit stand was cited for violating road setback and 

parking requirements. The State was aware of the problem. It

demolished the fruit 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.) No published opinion has stated that terse responses 

to contention interrogatories trump a Proposition 51 

proportionate fault defense. Before an issue-evidence preclusion 

. . . 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 requests in a 

wrongful death action. The trial court struck Pratt’s answer on 

liability (id. at p. 621) and granted summary adjudication on 

liability based on an earlier issue-determination and evidencepreclusion 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 Court of Appeal affirmed, 

holding that Civil Code section 1431.2 could not be 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, respondents knew the comparative 

fault of the settling defendants was a contested issue but did not 

ask for supplemental interrogatory answers, propound requests 

for admissions, or file a motion to impose an issue-evidence 

sanction. This is significant. Unless there has been “a violation 

of an order compelling 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 or 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 motions prescribed by the Code 
10

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 infringed on appellants’ statutory right to have the 

jury determine 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 me to tell somebody 

that you can’t present evidence with regard to comparative fault.”

We are compelled 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 rendered against that

defendant for that amount.” (Civ. Code, § 1431.2, subd. (a).)

Golden Rule Argument and Ad Hominem Attacks

During final argument, respondents’ counsel told the 

jury that counsel is “not being straight with you,” and this is “not 

the time to make up lies and to try to cheat your way to justice.” 

Appellants and their attorney spent the last five years “actively 

evading responsibility. And not just actively evading it, but [by]

lying.” “I called them lies in the beginning, but . . . they have 

blown into even bigger things because it is a fraud.” 

Respondents’ attorney asked the jurors to “[j]ust 

imagine that is your daughter,” and to image “that constant love 

and connection between you and your daughter,” and that “your 

daughter is taken away.” Counsel argued that Jocelyne was like 

a hundred-million-dollar Picasso painting and to “[i]magine you 
11

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 

earlier.” 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 waived their objections to the comments of 

[respondents’] counsel in closing argument, the 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.)

Each case must be decided on its own facts and circumstances. 

(Ibid.)

Here, the Golden Rule argument and ad hominem 

attacks 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. Defense counsel did not lie and 
12

did not commit a fraud by exercising the right to trial. “You 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 sorrow, 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 

misconduct, 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 deferential 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 the moving party in the absence of the 

irregularity or error. (Ibid.; see 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 defendants, and impugned the motives and 

purpose of defendants]; Simmons, supra, at pp. 351-357 [counsel 

accused defendant of cheating, stealing, and perjury]; Kenworthy 

v. State of California (1965) 236 Cal.App.2d 378, 397-399 

[misconduct “was a deliberate attempt 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 defendants would have 
13

been reached but for the error. (Cal. Const., art. VI, § [13].)” 

(Garden 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, 394.) The Golden Rule 

argument that the jurors should “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 

requires reversal. “The law, like boxing, prohibits hitting below 

the belt. The basic rule forbids an attorney to pander to the 

prejudice, passion 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 damages, but the jury’s finding of liability is 

supported by substantial evidence. Respondents’ 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 highway. 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 that 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 requiring 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 and 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.4th 

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 Homampour and 

Scott E. Boyer; The Ehrlich Law Firm and Jeffrey I. Ehrlich for 

Plaintiffs and Respondent.