Filed 7/27/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

BRYCE JACKSON,

 Plaintiff and Respondent,

v.

JOHN H. PARK,

 Defendant and Appellant.

 B297616

 (Los Angeles County

 Super. Ct. No. BC611403)

APPEAL from an order of the Superior Court of Los 

Angeles County, Frederick C. Shaller, Judge. Affirmed.

Cholakian & Associates, Kevin K. Cholakian and Melvin F. 

Marcia, Hayes, Scott, Bonino, Ellingson, Guslani, Simonson & 

Clause, Mark G. Bonino and Emma B. Lloyd for Defendant and 

Appellant. 

Vaziri Law Group, Siamak Vaziri and Caryn Sanders for 

Plaintiff and Respondent.

_______________________
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INTRODUCTION

John H. Park appeals from an order granting Bryce 

Jackson’s motion for a new trial based on attorney misconduct 

during closing argument in this vehicle collision case. Among 

other misconduct, the trial court found defense counsel falsely 

argued excluded evidence did not exist and argued facts outside 

the record. 

It is improper for counsel to assert or imply facts not in 

evidence that counsel knows could be refuted by evidence the 

court has excluded. It is also improper to argue facts not in the 

record, and to continue to argue those facts after the court has 

instructed counsel to stop. 

The trial court concluded defense counsel’s improper 

arguments resulted in a miscarriage of justice warranting a new 

trial. Because the trial court did not abuse its discretion in 

granting Jackson’s motion for a new trial, we affirm.

FACTUAL AND PROCEDURAL HISTORY

A. The Vehicle Collision

On March 9, 2014, at approximately 3:30 a.m., Park’s 

vehicle struck the rear left-side of a loaded trailer towed behind 

Jackson’s pickup truck on a local freeway. California Highway 

Patrol Officer Adam Powell arrived at the accident site 

approximately 15 minutes after the collision. Powell observed 

minor damage to both vehicles. Neither Jackson nor Park 

reported any injuries, and Powell did not call an ambulance. 

Jackson did not feel any pain, did not request any medical 

treatment, and drove himself home in his truck without the 

trailer.
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B. Park’s Arrest and Conviction for Driving Under the 

Influence of Alcohol

Powell testified Park smelled of alcohol, his speech was 

slow and slurred at times, and his eyes were bloodshot. Park told 

Powell he had consumed one beer at a restaurant six to eight 

hours before the collision.1 Based on Park’s performance on 

several field sobriety tests, Powell concluded Park had been 

driving under the influence of alcohol and arrested him.

Park submitted to two breathalyzer tests at the police 

station. The results of the tests showed Park had a blood alcohol 

concentration (BAC) level in excess of 0.15 percent. Park

ultimately pleaded no contest to misdemeanor driving under the 

influence of alcohol.2

C. The Trial in the Civil Case

In February 2016 Jackson filed a personal injury complaint 

against Park seeking compensatory damages for negligence.3 

Jackson filed a first amended complaint in August 2018 adding a 

prayer for punitive damages based on Park’s intoxication. Park 

admitted liability for the collision, but contested causation and 

damages.

1 Park testified at trial that he “may have” had two beers 

before the collision, but he “felt fine” to drive.

2 The record does not contain a copy of the criminal 

complaint or Park’s plea form, but Park admitted in the civil case 

that he had pleaded no contest to misdemeanor driving under the 

influence arising out of the collision.

3 Jackson also sued two alleged owners and insureds of the 

car Park was driving when he hit Jackson. Both were dismissed 

at trial.
4

1. The alcohol evidence

a. The trial court excludes evidence of Park’s 

arrest, conviction, and breathalyzer test results

Park moved in limine to exclude evidence of his arrest and

conviction. Jackson argued in opposition that Park’s conviction

and, more generally, evidence of Park’s “practice of drunk 

driving” were relevant to Jackson’s punitive damages claim and

demonstrated Park’s alleged lack of honesty and credibility. The 

court and counsel had numerous discussions about Park’s motion 

and the alcohol-related evidence to be admitted at trial.

The court excluded evidence of Park’s arrest and conviction. 

The court ruled Powell could testify about the results of Park’s 

breathalyzer tests if Powell could provide sufficient foundational 

testimony regarding the use and operation of the machine used to 

administer the tests. The court stated that Jackson “should be 

entitled to make the case for intoxication based on the evidence 

that exists outside of the blood alcohol test,” but that Powell 

could not estimate Park’s BAC level or disclose the breathalyzer 

test results without proper foundational testimony.

b. Powell’s testimony and violation of the court’s in 

limine order

Immediately before Powell testified, the court reminded 

counsel of the court’s ruling regarding the alcohol evidence: “Do 

we need to talk to [Powell] in advance before we have him testify 

or are we all on the same page that unless he has [the] 

foundational requirements for the calibration of the 

[breathalyzer] machine, . . . [the court] will not permit him to 

testify regarding the blood level results.” Jackson’s counsel 

responded that he had “told [Powell] that we’re not going to 
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mention [the] BAC level.” The court reiterated its ruling

excluding “[t]he results of the breathalyzer test at this time, 

unless some foundation is laid at some point, and any 

implications that [Park] was arrested or that [Park] suffered a 

conviction later on for DUI. That’s my order.” Jackson’s counsel 

stated, “I’ll instruct [Powell] . . . not to mention the arrest.”

During his testimony, Powell described the collision, the 

condition of the vehicles, and Jackson’s and Park’s statements

about how the collision occurred. Powell also testified about his 

observations of Park’s condition and Park’s poor performance on 

the field sobriety tests.

Powell explained that one of the field sobriety tests, the 

horizontal gaze nystagmus test, is an “eye test” during which 

Powell looks for “six clues” in a suspect’s eyes, such as pupil size 

and equal tracking of both eyes. Powell testified that he observed 

all six clues in Park’s eyes, and further testified that if a person’s 

eyes display four of the six clues, “that’s going to tell me that 

there’s a high probability that the person is over a [0].10 [percent

BAC level].” Defense counsel objected that Powell’s testimony 

violated the court’s in limine order. The court overruled the 

objection, stating “probability is different than what we were 

talking about.”

After Powell described Park’s performance on several other 

field sobriety tests, Jackson’s counsel asked Powell, “So after the 

conclusion of those tests, what did you conclude?” Powell replied, 

“I determined that Mr. Park was driving under the influence of 

an alcoholic beverage.” In response to counsel’s next question 

about whether Powell “would consider the results” of Park’s field 

sobriety tests “to have been very conclusive with a high degree of 

confidence,” Powell responded, “I was very confident in the 
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arrest, yes.” Defense counsel objected to Powell’s mention of 

Park’s arrest, and the trial court struck the testimony.

After Powell completed his testimony, defense counsel 

moved for a mistrial based on Powell’s violation of the court’s 

order precluding Powell from estimating Park’s BAC level and 

mentioning Park’s arrest. Calling it a “close call,” the court 

denied the motion. The court instead instructed the jury, 

“During Officer Powell’s testimony, he made a certain number of 

misstatements. I want to clarify this and give you instructions 

regarding it. Officer Powell mentioned the word ‘arrest’ in his 

testimony. There is no evidence of an arrest and there will be 

none. Secondly, Officer Powell mentioned [a] certain blood level 

of alcohol in his testimony. In this case, there is no evidence of 

Mr. Park’s blood level and there will be none. Okay. I want you 

to know that those pieces of evidence, I’m instructing you, those 

statements are not to be considered by you and it should be 

considered as if it did not happen.”

c. The other alcohol evidence

Dr. Vina Spiehler, a forensic pharmacologist, opined that 

based on Park’s poor performance on the field sobriety tests, Park 

was intoxicated when he hit Jackson. Spiehler also testified that 

one beer would not cause a person to fail a field sobriety test, and 

that to have failed the field sobriety tests Park would likely have 

consumed at least five or six beers before the collision.

2. The medical and other evidence

a. Jackson’s back pain and treatment

Jackson testified that the day of the collision he felt stiff 

and sore. Later that day or the next day Jackson retained a 
7

lawyer to obtain advice about medical treatment and the damage 

to his truck and trailer.

In March 2014 Jackson saw Dr. Stephanie Lafayette for a 

cold and for preexisting hypertension.4 Before meeting with

Dr. Lafayette, Jackson completed an intake form on March 18, 

2014 on which he responded “no” to the questions, “Do you have a 

history of medical problems?” and “Do you have any medical 

problems now?” On March 24, 2014 Jackson reported having 

zero pain in response to a pain scale question. Park subpoenaed 

Dr. Lafayette to testify at trial; she testified that during 

Jackson’s March 25, 2014 appointment, Jackson did not mention 

any back pain.

Jackson testified he did not mention his back pain to 

Dr. Lafayette because his attorneys had made an appointment for 

him to see an orthopedic surgeon, Dr. Stepan Kasimian, the 

following week. Jackson later rescheduled his appointment with 

Dr. Kasimian to May 2014.

Jackson first saw a chiropractor about his back pain in

April 2014, a month after the collision. Jackson testified the 

chiropractor’s treatment made him “feel worse and hurt, so [he]

needed to stop.” The chiropractor did not testify at trial.

Jackson saw Dr. Kasimian on May 2, 2014 for back pain 

radiating to his lower leg and numbness in his fingers. Jackson 

testified he had never before experienced similar lower back pain, 

and that no doctor had ever told him before the collision that he 

had any lower back condition. Dr. Kasimian ordered an MRI of 

Jackson’s back in July 2014, which revealed a disc herniation or 

4 Jackson saw Dr. Lafayette in jail while incarcerated for an 

unrelated matter. The trial court excluded evidence of Jackson’s 

criminal history and incarceration.
8

protrusion in Jackson’s lower back. Jackson testified 

Dr. Kasimian discussed treatment options with him, including 

physical therapy, injections, and surgery, but Jackson felt uneasy 

about surgery and sought other opinions. Dr. Kasimian did not 

testify at trial.

In August 2014 Jackson saw Dr. Aaron Coppelson, who 

performed an electromyography (EMG) test. The EMG test was 

normal and showed “no issues in [Jackson’s] cervical spine.” 

Dr. Coppelson did not testify at trial.

In November 2014 Jackson saw another orthopedic 

surgeon, Dr. Kasra Rowshan, for pain radiating from his back to 

his legs, and numbness and tingling in his fingers. Dr. Rowshan 

reviewed photographs of the March 9, 2014 collision, Jackson’s 

medical records, and the results of the July 2014 MRI exam. 

Dr. Rowshan opined that the collision “led to the injury in 

[Jackson’s] lumbar spine,” including a herniated disc. 

Dr. Rowshan also testified Jackson had a congenital condition 

that could predispose Jackson to spinal slippage and instability. 

Starting in December 2014 Dr. Rowshan administered 

three lumbar epidural injections to Jackson over six months. 

When Jackson’s pain returned following the injections, 

Dr. Rowshan performed a lumber laminectomy surgery on 

Jackson in July 2015 to remove nerve pressure. Jackson’s back 

pain initially improved following the surgery, but eventually 

returned to its presurgery level.

In October 2018 Jackson complained to Dr. Rowshan of 

lower back pain and pain radiating down his right leg. Jackson 

reported the pain interfered with his ability to stand and to 

perform daily activities. Dr. Rowshan recommended Jackson 

undergo a spinal fusion surgery to remove Jackson’s damaged 
9

lumbar disc. Jackson had not had the second surgery at the time 

of the trial, but testified he planned to have the surgery because 

of his continuing pain. Dr. Rowshan opined that as a result of 

the collision Jackson would have back pain for the rest of his life.

Jackson testified he worked at his mother’s furniture store 

from 2009 to 2018. Jackson did not call any of his coworkers to 

testify at the trial. Jackson testified his daily life after the 

collision was “a lot harder,” and that he was rude to his family

and could not participate in activities with his children.

Jackson’s wife, Justine Thompson, testified Jackson told 

her after the collision that his back hurt, and that the pain 

worsened in the months after the collision. Thompson testified 

that since the collision Jackson had become short-tempered with 

their children and could not play with them because of his back 

pain.

b. The accident reconstruction evidence

Jackson’s accident reconstruction expert, John Landerville,

testified Jackson’s truck incurred significant frame damage in 

the collision. Landerville described Jackson’s tow hitch as 

“basically destroyed” in the collision, and Park’s car as “a total 

loss and gone.” Landerville testified the force of the collision

lifted the suspension of Jackson’s truck, which Jackson would 

have felt inside the truck.

Jackson’s biomechanical expert, Dr. Rami Hashish,

testified about the forces in the collision, and the effect of a low 

impact collision on a hypothetical patient at increased risk for 

injury. Dr. Hashish opined the collision was sufficiently severe to 

cause the type of disc injury Jackson suffered.

Park’s accident reconstruction and biomechanical expert, 

Judson Welcher, ran simulations of the crash. Welcher opined 
10

Jackson’s trailer tow hitch had not been properly installed, and 

thus had failed at a lower force load than it should have. Welcher 

noted little damage to Jackson’s trailer, and disagreed with 

Landerville that the truck suspension had lifted in the collision. 

Welcher also testified that while Jackson’s preexisting conditions 

increased Jackson’s risk of injury in a traffic collision, the same 

conditions also increased his risk of injury from everyday lifting.

c. The other medical expert testimony and the 

medical billing evidence

Jackson’s medical expert, radiologist Dr. Alyssa Watanabe, 

reviewed Jackson’s July 2014 MRI films. Dr. Watanabe testified

Jackson’s MRI showed an acute disc herniation or protrusion that

had occurred less than six months before the scan.

Defense expert Dr. Richard Rhee, a radiologist, reviewed 

Jackson’s medical records. Dr. Rhee acknowledged that 

Jackson’s July 2014 MRI scan showed a small disc protrusion, 

but could not conclude based on the protrusion’s appearance “that 

it was related to the subject accident on a more probable than not 

basis.”

Another defense medical expert, orthopedic surgeon 

Dr. Steven Nagelberg, testified that Jackson did not need surgery 

as a result of the collision, and did not need surgery at all. 

Dr. Nagelberg questioned whether Jackson had suffered any 

spinal injury and opined that Jackson’s spinal scan showed no 

structural abnormalities. 

The parties offered competing expert opinions about the 

reasonable value of Jackson’s medical treatments. Jackson’s 

forensic medical coder and biller Jacqueline Nash Bloink opined 

that the reasonable value of Jackson’s past medical expenses was 

$70,666.81, and the estimated reasonable value of Jackson’s 
11

future medical expenses was $66,159. Park’s medical billing 

auditor Nancy Fraser Michalski opined that the reasonable value 

of Jackson’s past medical expenses was $36,661.36.

3. The closing arguments

The court instructed the jury before closing arguments. 

The instructions included CACI No. 203 (party having power to 

produce better evidence), which states, “You may consider the 

ability of each party to provide evidence. If a party provided 

weaker evidence when it could have provided stronger evidence, 

you may distrust the weaker evidence.”

In his closing argument, Jackson’s counsel argued Park 

“was drunk [and] couldn’t see [Jackson’s] trailer because he was 

intoxicated.” Jackson’s counsel asserted the evidence showed the 

collision caused Jackson’s back injury. Jackson sought 

$70,666.81 in past economic damages, $66,159 in future economic 

damages, and more than $1,200,000 in past and future 

noneconomic damages. Jackson’s counsel also argued Park acted 

fraudulently and with malice by lying about the number of 

alcoholic drinks he had consumed before the collision.

At the outset of the defense closing argument, defense

counsel Kevin Cholakian argued “there was absolutely no 

evidence that John Park intended to hurt anybody or acted in a 

despicable manner.” Defense counsel asserted that the “only 

reason” Jackson sought punitive damages was “to cloud your 

judgment.”

Defense counsel argued Park “just clipped” Jackson’s 

trailer by “mistake” after Park missed his freeway exit. Defense 

counsel continued: 

“There’s no evidence that alcohol caused [Park] 

to make that mistake, but it was 3:30 in the morning. 
12

He said he was tired. So he made a mistake. He 

admitted responsibility. But trying to take that act 

and trying to say alcohol was the reason why, where’s 

the evidence that alcohol caused that? There’s no 

evidence that alcohol caused that. Again, he clipped 

the trailer. 

“There’s zero evidence of an arrest, of BAC or

[of a] conviction. The court, the judge, told you all, if 

you remember last week, . . . ‘During Officer Powell’s 

testimony, he made a certain number of 

misstatements. I want to clarify this and give you 

instructions regarding it. Officer Powell mentioned 

the word “arrest” in his testimony. There is no 

evidence of an arrest and there will be none.’

“‘Secondly, Officer Powell mentioned [a] certain 

BAC level of alcohol in his testimony. In this case 

there’s no evidence of Mr. Park’s blood alcohol, and 

there will be none, okay. I want you to know these 

pieces of evidence, I’m instructing you, those 

statements are not to be considered by you, and it 

should be considered as if it did not happen. Okay.’

“So the judge has instructed that nothing 

beyond the suspicion by Officer Powell is 

involved . . . . 

“There’s only one point, to cloud your judgment 

about the real case that’s here, which is, is this a 

personal injury case or not? Is this a rear-end 

accident or not? That’s what the case is about. 

That’s it. There’s no definitive evidence of 

intoxication, only evidence of a subjective test. I’m 
13

not criticizing the officer. That was his opinion, 

that’s all we have, and that’s all there is.”

As defense counsel made this argument, he displayed a 

demonstrative exhibit that stated, “There is zero evidence of 

arrest, BAC, or [c]onviction; the only evidence in the case 

regarding alcohol consumption before this accident was suspicion 

by Ofc. Powell. . . . No definitive evidence of intoxication, only 

evidence of a subjective test regarding physical activities a tired 

John Park allegedly failed at 3:30 a.m.”

Defense counsel then addressed CACI No. 203. He argued:

“This instruction is an important instruction 

that the court’s given to you. ‘You may consider the 

ability of each party to provide evidence. If a party 

provided weaker evidence when it should have 

provided stronger evidence, you may distrust the 

weaker evidence.’ Ladies and gentlemen, what’s 

wrong with this picture? What’s wrong with the 

picture in this case in terms of the witnesses that 

were presented? You didn’t hear from Mr. Jackson’s 

chiropractor, did you? You didn’t hear from 

Dr. Kasimian, did you? You didn’t hear from 

Dr. Koppleson [sic] who did a cervical EMG that was 

negative . . . . You didn’t hear of any doctor that the 

plaintiff presented, that the plaintiff even saw after 

this accident for the first seven months following this 

accident. That’s just kind of unheard of.

“[I]f you were injured in an accident, aren’t you 

going to have some medical attention and bring, as 

the plaintiff in a case this long, two weeks long, bring 

a doctor who actually saw the plaintiff or even a 
14

chiropractor in the first seven months after an 

accident? It’s unthinkable you don’t bring that.

“And the plaintiff has that responsibility. They 

had the burden of proof. . . . Did they subpoena these 

folks? Did they bring them in like we brought in 

Dr. Lafayette, who came all the way from Palm 

Desert, a lot farther from where these folks traveled 

from in Los Angeles. What’s up with that? 

“What’s up with this? [Jackson] worked, he 

said, for nine years at the [furniture store], nine 

years. Nowhere else.”

Jackson’s counsel objected in the jury’s presence, “This is not in 

evidence.” Defense counsel replied, “It sure is. He testified to it.” 

The court responded, “The jury will have to decide whether it’s in 

evidence or not. So go ahead.”

Defense counsel continued with his argument: “[Jackson] 

did not work, other than [at] the [furniture store], in the last nine 

years. He said that in his deposition. . . . He has employees that 

are co-fellow employees or other employees that he’s worked with. 

It’s unheard [of] that you don’t have the co-employees come, at 

least one or two of them, and say ‘Hey, yeah, I saw him walking 

around. I saw him hurt. I saw him complain. He told me about 

how he got injured.’ Where was a single witness from the 

[furniture store]? Not a one.”

At this point the court intervened, and the court and 

defense counsel had the following exchange in the jury’s presence:

“[COURT:] Okay. I don’t know if I misconstrued 

counsel’s objection, but to the extent that you’re 

commenting on [a] failure to call witnesses that were 
15

equally available to both sides, that’s improper. Let’s 

not mention it.

[DEFENSE COUNSEL:] Well, I don’t know that they 

were equally available to both sides, Your Honor, but 

the bottom line is that’s where [Jackson] worked. 

And he had the ability—they had the ability to call 

those witnesses. Burden of proof—

[COURT:] I have no evidence to suggest [Jackson] 

did or didn’t, or you did or didn’t. That’s the problem.

[DEFENSE COUNSEL:] Okay.”

Despite the court’s comments, defense counsel picked up where 

he had left off: “In any event, there was no witness called from 

the [furniture store]. The burden of proof is on the plaintiff to 

prove their case.”

After summarizing and contrasting the testimony of the 

parties’ witnesses, defense counsel next turned to Dr. Lafayette: 

“Dr. Lafayette, we didn’t hire her, ladies and gentlemen. We did 

not hire [her]. You saw her. Do you think she was biased? Do 

you think she was committed to one side or the other? We didn’t 

know her. We didn’t know about her. You know why we didn’t 

know about her early on . . . ? We didn’t know because plaintiff 

in answers to interrogatories in discovery and in his

deposition . . . .”

Jackson’s counsel objected, and the following colloquy

occurred in the jury’s presence:

“[JACKSON’S COUNSEL:] Not in evidence.

[COURT:] That was not in evidence.

[DEFENSE COUNSEL:] Yeah, not in our case, but 

in his deposition.
16

[JACKSON’S COUNSEL:] Not in evidence, Your 

Honor.

[DEFENSE COUNSEL:] No, the deposition, he 

didn’t. That’s in evidence.

[COURT:] That part of the deposition was not read. 

So sustained. The jury is to disregard that argument.

[DEFENSE COUNSEL:] Wait a minute, Your Honor. 

There was—we asked who all the doctors were he 

saw, and he didn’t mention Dr. Lafayette. So—

[COURT:] Interrogatory.

[DEFENSE COUNSEL:] No, I agree with you on the 

interrogatory, but the deposition, if we ask ‘who have 

you seen,’ and he’s never mentioned Dr. Lafayette.

[COURT:] Well—

[DEFENSE COUNSEL:] That’s the point.

[COURT:] I don’t recall that testimony, that answer 

being read in.

[DEFENSE COUNSEL:] What answer is that?

[COURT:] The answer you are referring to from his 

deposition.

[DEFENSE COUNSEL:] We—

[COURT:] So, in other words, it’s outside of the 

evidence. Don’t argue it.

[DEFENSE COUNSEL:] Okay.”

Undeterred by the court’s instructions, defense counsel 

continued his argument about Dr. Lafayette: “Dr. Lafayette we 

found out about. We learned about Dr. Lafayette. That is why

Dr. Lafayette came to this trial, because we tracked her down. 

She retired, and we found her, and we subpoenaed her for 
17

deposition. . . . [A]nd then after that deposition, we subpoenaed 

her for trial. It was my office that did that.”

Jackson’s counsel again objected, and the following

exchange occurred, again in the jury’s presence:

“[JACKSON’S COUNSEL:] Your Honor, this is all 

improper argument.

[COURT:] What you did in an investigation is not in 

evidence. So sustained. So, counsel, stick to what 

was in evidence through the witnesses in this case; 

otherwise, I think you are getting close to misconduct 

here.

[DEFENSE COUNSEL:] Okay. We called 

Dr. Lafayette. We did call her, that is standard, for 

trial.

[JACKSON’S COUNSEL:] Okay. Can we have a 

sidebar please?

[DEFENSE COUNSEL:] That we subpoenaed her for 

trial?

[JACKSON’S COUNSEL:] Sidebar, please.

[COURT:] Well, okay. Why don’t we take a tenminute break.”

With the jury on a break, the court and counsel discussed 

Jackson’s counsel’s objections and defense counsel’s arguments. 

Jackson’s counsel asserted that defense counsel’s arguments 

about the alcohol evidence and Dr. Lafayette constituted “blatant 

misconduct.”

The court informed defense counsel that arguing matters 

not in evidence “is improper.” The court stated that no evidence 

admitted at trial supported defense counsel’s claims that Jackson 

had not identified Dr. Lafayette in his discovery responses, or
18

that defense counsel had located Dr. Lafayette through counsel’s

investigation. The court also stated that defense counsel’s 

“suggest[ion] that the plaintiff didn’t call witnesses without any 

information about whether they’re available or not,” when “you 

could have called any one of those three witnesses,” was 

improper. The court concluded: “You have really stepped over 

the line here.”

The court then identified other improper portions of 

defense counsel’s closing argument and demonstrative exhibits: 

“[T]here were several things in your slideshow 

here that are totally improper. . . . [W]hen you have

made a motion to exclude the blood alcohol level and 

the fact of an arrest, and then you use that as a 

centerpiece of your argument, you know, you flip it 

around. . . .

“So all of these things are going to line up 

pretty heavily to give me the impression that there’s 

misconduct here. . . . You presented some pretty 

strong evidence. Stick with it.”

When the trial resumed, the court admonished the jury to 

disregard defense counsel’s arguments about witnesses Jackson 

had not called and about the alcohol evidence: “So counsel 

commented on the failure of plaintiff to call certain witnesses. 

These witnesses were equally available to both sides who have 

been called in this trial. You must disregard such argument in 

reaching your decision this matter. Secondly, counsel mentioned 

that there was no evidence of a blood alcohol level or arrest. 

There was no such evidence or such blood alcohol level or arrest 

one way or the other on this subject. You must disregard such 

argument in reaching your decision in this matter.”
19

Following the court’s admonition, defense counsel 

continued his closing argument. Defense counsel argued that “if 

there’s damages,” the jury should award Jackson “like $15,000 for 

his discomfort.”

D. The Jury Verdict

The jury returned its verdict the following day. The jury 

found Park’s negligence was a substantial factor in causing 

Jackson’s harm. The jury awarded Jackson $15,235 in past 

economic damages and $2,000 in past noneconomic damages. 

The jury did not award Jackson any future economic or 

noneconomic damages. The jury also found Park’s conduct was 

not malicious, oppressive, or fraudulent. The court entered 

judgment on March 6, 2019.

E. The Motion for a New Trial

On March 21, 2019 Jackson filed a notice of his intention to 

move for a new trial. Jackson identified several grounds for his 

motion, including irregularity in the proceedings pursuant to 

Code of Civil Procedure section 657, subdivision (1). Jackson 

argued defense counsel had engaged in prejudicial misconduct 

during closing argument by exploiting the court’s in limine order

excluding evidence of Park’s arrest, conviction, and breathalyzer 

test results to suggest falsely that Park was not intoxicated 

during the collision and was not arrested after the collision.

Park argued in opposition that defense counsel had not 

engaged in misconduct, but that if he had committed misconduct, 

the court’s admonitions had remedied any improper argument. 

Park also argued the evidence supported the jury’s verdict.

At the April 22, 2019 hearing on the motion, the court 

stated that defense counsel had taken the “in limine order 
20

precluding the admission of the [BAC] analysis, the fact of arrest 

[and] the conviction . . . for DUI, and then the court’s admonition 

after Officer Powell’s testimony, stating that we should treat this 

as [if] it did not exist, but then you flipped it around and basically 

used it as a sword to say . . . there was no DUI, there was no 

abnormal BAC, or there was no conviction. At least you implied 

that by your argument.”

The court also stated that it was improper for defense 

counsel to have commented that Jackson had not called witnesses

to testify when the witnesses were known and equally available 

to the defense by subpoena, and improper to have claimed

Jackson had hidden Dr. Lafayette from the defense. Describing 

the trial as a “close-call case” because the defense presented 

“pretty strong” evidence the collision was minor, but Jackson 

“had very strong evidence” the collision caused a disc herniation 

resulting in spinal surgery, the court took the motion under 

submission “to consider the whole issue of prejudice.”

F. The Trial Court’s Order Granting the Motion for a New 

Trial

The court issued a detailed order the following day vacating 

the March 6, 2019 judgment and granting Jackson’s motion for a 

new trial on causation and damages.5 The court ruled, “The 

order is based upon multiple incidents of misconduct by defense 

counsel . . . during final argument that constitutes a prejudicial 

irregularity in the proceeding under [Code of Civil Procedure

section] 657(1) that could not be cured by the admonitions of the 

court to the jury to disregard the inappropriate argument and 

5 The court ruled liability would not be retried because Park 

had admitted liability.
21

which deprived plaintiff of a fair trial.” The misconduct “was 

prejudicial and likely caused the jury to give an inadequate 

award of compensatory damages and to fail to reach the issue of 

punitive damages.”

First, the trial court ruled that, relying on the court’s 

admonition to the jury regarding Powell’s testimony, defense 

counsel falsely argued no evidence existed that Park had been 

arrested for or convicted of driving under the influence, or that 

Park had a BAC level in excess of the legal limit. The court 

explained that when “a party has been precluded from offering 

evidence because of an evidentiary ruling finding it inadmissible, 

the party asserting the evidentiary sanction should not be 

permitted to use the court’s ruling as a basis to make an 

argument that implies that the evidence is much more favorable 

to the asserting party than it actually is.”

Second, the court found defense counsel improperly argued 

Jackson had concealed Dr. Lafayette from the defense, and that 

defense counsel “had to track Dr. Lafayette down” so she could 

testify at trial. The court further observed that defense counsel 

argued with the court in front of the jury after the court 

instructed counsel not to claim Jackson had not identified 

Dr. Lafayette in his discovery responses. The court found defense 

counsel’s persistent argument “was clearly an intentional effort 

to complete the argument to clearly advise the jury of the untrue 

assertion that plaintiff had concealed evidence in discovery,” and 

was “misconduct because it repeatedly [brought] before the jury a 

theory of willful suppression of evidence based upon facts that 

were not in evidence.” Defense counsel’s continued argument 

before the jury “after the court sustained plaintiff’s objection and 
22

admonished the jury not to consider the argument” was “further 

misconduct.”

Third, the court ruled defense counsel improperly argued 

the jury should infer from Jackson’s failure to call medical 

witnesses and coworkers known and equally available to the 

defense that the witnesses would have offered testimony adverse 

to Jackson. The court found that “the resulting low verdict on 

damages likely resulted in part from the jury’s discounting of 

plaintiff’s witnesses on damages based upon this argument.” 

Further, defense counsel improperly argued based on CACI 

No. 203 that Jackson’s witnesses’ trial testimony was weaker 

evidence than the evidence the uncalled witnesses would have 

offered.6

The court found defense counsel’s misconduct prejudiced 

Jackson. Jackson produced “very compelling and credible 

medical evidence” supporting his contention he suffered a 

herniated disc in the collision that required surgery. The court 

concluded, “The award of $15,235 for past medical special 

damages and $0 for future medical specials and for only $2,000 in 

pain and suffering was achieved by defendant by unfair tactics. 

The weight of the evidence indicated to the court that the jury’s 

verdict should have been much greater.” The court also ruled 

that its admonitions to the jury were insufficient to negate the 

prejudicial effect of defense counsel’s misconduct, “result[ing] in a 

miscarriage of justice.”

6 The court also found defense counsel disparaged Jackson’s 

counsel’s character, and “falsely and improperly implied that 

[Jackson’s] argument[s] [were] specious because [Jackson’s 

counsel] was attempting to obtain a verdict based upon an 

emotional appeal to [each] juror’s self-interest.”
23

Park timely appealed the order granting the motion for a 

new trial.7

DISCUSSION

A. Applicable Law and Standard of Review

“The authority of a trial court in this state to grant a new 

trial is established and circumscribed by statute. [Citation.] 

[Code of Civil Procedure] [s]ection 657 sets out seven grounds for 

such a motion: (1) ‘Irregularity in the proceedings’; 

(2) ‘Misconduct of the jury’; (3) ‘Accident or surprise’; (4) ‘Newly 

discovered evidence’; (5) ‘Excessive or inadequate damages’; 

(6) ‘Insufficiency of the evidence’; and (7) ‘Error in law.’” 

(Oakland Raiders v. National Football League (2007) 41 Cal.4th 

624, 633 (Oakland Raiders); accord, Knutson v. Foster (2018)

25 Cal.App.5th 1075, 1089.) “Attorney misconduct is an 

irregularity in the proceedings and a ground for a new trial.” 

(Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148 

(Garcia).)

7 Park filed three motions to augment the appellate record. 

We granted Park’s first and second motions. Park’s third motion, 

which Jackson opposes, seeks to augment the appellate record 

with copies of discovery responses and a deposition transcript 

Park acknowledges were not introduced into evidence at trial. 

“Augmentation does not function to supplement the record with 

materials not before the trial court.” (Vons Companies, Inc. v. 

Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; see also Cal. 

Rules of Court, rule 8.155(a)(1)(A) [a reviewing court may order 

the record augmented to include “[a]ny document filed or lodged 

in the case in superior court”].) Park’s third motion to augment is 

denied.
24

We review the order granting a new trial for an abuse of 

discretion. (Oakland Raiders, supra, 41 Cal.4th at p. 636.) “‘The 

determination of a motion for a new trial rests so completely 

within the court’s discretion that its action will not be disturbed 

unless a manifest and unmistakable abuse of discretion clearly 

appears. This is particularly true when the discretion is 

exercised in favor of awarding a new trial, for this action does not 

finally dispose of the matter. So long as a reasonable or even 

fairly debatable justification under the law is shown for the order 

granting the new trial, the order will not be set aside.’” 

(Simers v. Los Angeles Times Communications (2018) 

18 Cal.App.5th 1248, 1275 (Simers).)8

B. The Trial Court Did Not Abuse Its Discretion in Granting 

the Motion for a New Trial

1. The misconduct

a. The misconduct regarding the alcohol evidence

Defense counsel’s arguments that “[t]here’s no evidence 

that alcohol caused” the collision, that “[t]here’s zero evidence of 

an arrest, of BAC or [of a] conviction,” and that Powell’s “opinion” 

of Park’s intoxication was “all there is” were improper. Evidence 

of Park’s arrest, conviction, and BAC level existed; the trial court 

had excluded the evidence at Park’s behest. It is improper for 

8 Park argues we should reverse the trial court’s order

granting a new trial because substantial evidence supports the 

jury’s verdict. The standard for review of an order granting a 

new trial motion is not whether substantial evidence supports the 

verdict, but whether the court manifestly and unmistakably 

abused its discretion in granting the new trial motion. (Simers, 

supra, 18 Cal.App.5th at p. 1275.)
25

counsel to assert or imply facts not in evidence that counsel 

knows excluded evidence could refute. (Hoffman v. Brandt (1966) 

65 Cal.2d 549, 555 [defense counsel’s argument falsely implying 

defendant lacked insurance was misconduct requiring reversal of 

judgment]; Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 

1487 [“if Frio were to be precluded from giving testimony because 

of the evidentiary sanction of [Penal Code] section 632

[precluding admission of evidence obtained through 

‘eavesdropping upon or recording a confidential communication’], 

the party asserting the sanction should not be permitted to use it 

as a shield for perjury”]; Cordi v. Garcia (1940) 39 Cal.App.2d 

189, 197 [“It was prejudicial error for plaintiff’s attorney to refer 

in his argument to the jury to the contents of reports or letters 

affecting the injuries received by the plaintiff, the inspection and 

use of which documents were refused and which instruments 

were not received in evidence. The jury may have secured the 

impression from the argument that they were much more 

favorable to the plaintiff than the facts would warrant.”]; see also 

Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 325-326 (dis. 

opn. of Traynor, J.) [“It is misconduct to suggest facts not in 

evidence that counsel knows could be contradicted by evidence 

the court has excluded.”]; Hansen v. Warco Steel Corp. (1965) 

237 Cal.App.2d 870, 878 [“Counsel was guilty of serious 

misconduct in arguing the importance of the excluded document 

and in asking the jury to draw an inference because plaintiff’s 

attorney had made an objection which the court had sustained. 

This kind of misconduct, under some circumstances, is ground for 

reversal of a judgment.”].) 

Furthermore, defense counsel not only falsely argued 

“[t]here’s no evidence that alcohol caused” the collision, he also 
26

used the court’s admonition about Powell’s testimony to fortify

his assertion that “[t]here’s no definitive evidence of intoxication.” 

After repeating the court’s admonition, defense counsel told the 

jury “the judge has instructed that nothing beyond the suspicion 

by Officer Powell is involved.” This argument both grossly

misrepresented the court’s admonition and improperly infused 

defense counsel’s misleading argument with the authority of the 

court. The trial court did not err in finding defense counsel’s 

arguments about the alcohol evidence constituted misconduct.

b. The misconduct regarding Dr. Lafayette

Defense counsel’s arguments that Jackson did not disclose 

Dr. Lafayette in his discovery responses and that defense counsel 

located Dr. Lafayette through counsel’s own investigation were 

also improper. Defense counsel told the jury that Jackson did not 

disclose Dr. Lafayette “in answers to interrogatories in discovery 

and in his deposition.” After Jackson’s counsel objected, defense 

counsel agreed the interrogatory responses to which he had 

referred were not in evidence, but argued with the court that the 

deposition testimony had been read into evidence. The court 

disagreed, ruling “it’s outside of the evidence. Don’t argue it.”

Ignoring the court’s ruling, defense counsel then argued to 

the jury that the defense “found out about” Dr. Lafayette, and 

that Dr. Lafayette “came to this trial because we tracked her 

down. . . . It was my office that did that.” After the court 

sustained another objection by Jackson’s counsel, defense counsel 

again argued with the court asserting, “We called Dr. Lafayette. 

We did call her, that is standard, for trial.”

Park appears to concede defense counsel’s arguments about 

Dr. Lafayette were improper. Park instead claims the trial 

court’s admonition to the jury following the mid-argument break
27

cured any prejudice to Jackson from the improper arguments. 

The admonition, however, did not address defense counsel’s 

improper arguments about Dr. Lafayette. The admonition

addressed defense counsel’s arguments about the alcohol 

evidence and Jackson’s failure to call witnesses. Because the 

admonition did not refer to Dr. Lafayette, it could not have cured 

the prejudice to Jackson from defense counsel’s arguments about 

her.9

Moreover, Park ignores that defense counsel repeatedly 

argued with the court in the jury’s presence about Jackson’s

alleged failure to disclose Dr. Lafayette in his discovery 

responses. The court sustained Jackson’s objection to defense 

counsel’s first reference to the discovery responses and instructed 

the jury to “disregard that argument.” After the court ruled, 

defense counsel continued to argue with the court, including 

repeatedly referring to the deposition testimony the court had 

just ruled was not in evidence. The court again ruled the 

9 Park’s insistence that Jackson did not disclose 

Dr. Lafayette’s identity in his discovery responses misses the 

point. As Park concedes, neither the interrogatory responses nor 

the deposition testimony to which defense counsel referred in 

closing argument was in evidence. Defense counsel’s arguments

about Jackson’s discovery responses were not improper because 

they were factually wrong; they might have been factually 

correct, i.e., Jackson may not have identified Dr. Lafayette in his 

discovery responses. The arguments were improper because the 

interrogatory responses and deposition testimony to which 

defense counsel referred were not in evidence. (See Cassim v. 

Allstate Ins. Co. (2004) 33 Cal.4th 780, 795-796 [“‘[w]hile a 

counsel in summing up may indulge in all fair arguments in favor 

of his client’s case, he may not assume facts not in evidence or 

invite the jury to speculate as to unsupported inferences’”].)
28

deposition testimony was not in evidence, instructing defense 

counsel not to argue that Jackson had not disclosed 

Dr. Lafayette. Defense counsel disregarded the court’s ruling, 

telling the jury that Dr. Lafayette “came to this trial because we 

tracked her down.” Jackson’s counsel objected again, and the 

court sustained the objection, again instructing defense counsel 

not to argue matters not in evidence: “What you did in an 

investigation is not in evidence. So sustained. . . . [S]tick to what 

was in evidence through the witnesses in this case.” Defense 

counsel argued with the court yet again before the court finally 

excused the jury for a break.

Defense counsel’s conduct during this whole sorry episode

was improper. It was improper to argue evidence not in the 

record, improper to refer repeatedly to that evidence after the 

court ordered counsel to stop, and improper to argue with the 

court in front of the jury in a transparent effort to highlight the 

evidence the court had instructed counsel not to mention. The 

trial court did not err in finding defense counsel’s arguments 

about Dr. Lafayette constituted misconduct.

2. The prejudice

“[I]t is not enough for a party to show attorney misconduct. 

In order to justify a new trial, the party must demonstrate that 

the misconduct was prejudicial.” (Garcia, supra, 204 Cal.App.4th 

at p. 149; accord, Martinez v. Department of Transportation

(2015) 238 Cal.App.4th 559, 568 [“[A]ttorney misconduct is more 

common than reversal for attorney misconduct. Prejudice must 

be shown.”].) In determining whether misconduct was 

prejudicial, “a reviewing court makes ‘an independent 

determination as to whether the error was prejudicial.’” (Garcia, 

at p. 149.) The court “must determine whether it is reasonably 
29

probable [that the [party asserting misconduct occurred]] would 

have achieved a more favorable result in the absence of that 

portion of [attorney conduct] now challenged.” (Ibid.)

The common theme of defense counsel’s improper 

arguments was that Jackson was untruthful—that he lied about 

Park’s intoxication and concocted a punitive damages claim, and 

that he served false discovery responses and concealed 

Dr. Lafayette from the defense. Defense counsel falsely argued 

no evidence of Park’s arrest, conviction, or BAC level existed, and 

misrepresented the court’s curative admonition as a jury

instruction that the only evidence of intoxication was Powell’s 

“suspicion.” Defense counsel then argued Jackson hid

Dr. Lafayette by failing to disclose her identity in discovery, 

requiring the defense to “track[] her down” through defense 

counsel’s investigation. Either of these improper arguments 

might have been sufficiently prejudicial to Jackson to warrant a 

new trial. Cumulatively, we readily conclude it is reasonably 

probable Jackson would have achieved a more favorable result 

without defense counsel’s improper arguments.

The jury’s verdict in Jackson’s favor demonstrated that the 

jury found the collision caused by Park’s negligence harmed

Jackson. But the jury awarded significantly less in past damages 

than Jackson sought, less in past economic damages than Park’s 

expert calculated, and no future damages. The jury appears to 

have almost entirely discounted Jackson’s evidence, including the 

testimony of his treating surgeon, that as a result of the collision 

Jackson suffered a herniated disc that required surgery, and that 

Jackson may well require a second surgery. It is reasonably 

probable defense counsel’s arguments that Jackson concealed 

Dr. Lafayette from the defense, and, moreover, did so by means of 
30

litigation subterfuge, caused the jury to magnify Dr. Lafayette’s 

testimony, to disregard Jackson’s explanation for his failure to 

mention his back pain to her, and to discount unfairly the 

testimony of Jackson’s witnesses about the extent of Jackson’s 

damages while overemphasizing Park’s witnesses’ testimony.

The jury also rejected Jackson’s argument that Park’s 

intoxication and statements about his drinking on the night of 

the collision demonstrated malice, fraud, and oppression. It is 

reasonably probable defense counsel’s improper arguments about 

the alcohol evidence—most egregiously, his false claim that “the 

judge has instructed that nothing beyond the suspicion of Officer 

Powell is involved”—unfairly influenced the jury’s evaluation of 

Jackson’s evidence and arguments about Park’s intoxication. The 

trial court did not abuse its discretion in concluding that defense 

counsel’s misconduct prejudiced Jackson and warranted a new 

trial on causation and damages.10 

10 Because we conclude the trial court did not abuse its 

discretion in granting Jackson’s new trial motion based on 

defense counsel’s improper arguments about the alcohol evidence 

and Dr. Lafayette, we need not reach Park’s contentions that the 

trial court erred in finding defense counsel’s arguments about 

Jackson’s failure to call witnesses and disparagement of 

Jackson’s counsel were also improper and provided additional 

grounds to grant Jackson’s motion. 
31

DISPOSITION

The order granting a new trial on causation and damages is 

affirmed. Jackson shall recover his costs on appeal.

McCORMICK, J.∗

We concur:

SEGAL, Acting P. J.

FEUER, J.

∗ Judge of the Orange County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.