Filed 7/23/21 Lasarte v. Catalina Cylinders CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JUAN LASARTE et al.,

Plaintiffs and Respondents,

v.

CATALINA CYLINDERS,

Defendant and Appellant.

 B295059

 (Los Angeles County

 Super. Ct. No. BC514465)

APPEAL from an order of the Superior Court of Los 

Angeles County, Mark A. Borenstein, Judge. Affirmed.

Horvitz & Levy, Daniel J. Gonzalez, Mitchell C. Tilner; 

Bassi, Edlin, Huie & Blum, Fred M. Blum, Michael E. Gallagher, 

Jr., and Lisa M. Stevenson for Defendant and Appellant.

Balaban & Spielberger, Daniel K. Balaban, Andrew J. 

Spielberger; Esner, Chang & Boyer, Holly N. Boyer, Shea S. 

Murphy; Greene, Broillet & Wheeler and Browne Greene for 

Plaintiffs and Respondents.

__________________________
2

Catalina Cylinders appeals from an order granting in part 

the motion for new trial filed by the heirs of Roberto Jesus 

Lasarte and by Roberto’s brother, Juan Lasarte, as to their strict 

liability failure to warn cause of action following a jury verdict in 

favor of Catalina.

1 Roberto was killed, and Juan was seriously 

injured when a cylinder, manufactured by Catalina to hold

compressed carbon dioxide, was filled with compressed nitrous 

oxide by Roberto and exploded at Roberto’s place of business. 

The jury found Catalina was not negligent and had not failed 

adequately to warn of the dangers of filling a cylinder designed 

for carbon dioxide with nitrous oxide. Plaintiffs moved for a new 

trial based on attorney and juror misconduct relating to 

admission of evidence of a settlement entered into between 

plaintiffs and former codefendant Rotarex North America, which

manufactured the valve that controlled the filling of the cylinder. 

The trial court found both attorney and juror misconduct had 

occurred and the misconduct was prejudicial as to plaintiffs’ 

failure to warn cause of action, but not their negligence cause of 

action. 

On appeal, Catalina contends the jury’s findings on the

special verdict form that Catalina had not failed adequately to 

warn rebutted any presumption of prejudice from the attorney 

and juror misconduct because the jury would not have considered 

the conduct of Rotarex in deciding whether Catalina’s warnings 

were adequate. Applying a deferential abuse of discretion 

standard, we affirm.

1 To avoid confusion, we refer to Roberto and Juan by their 

first names.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaints

On July 9, 2013 Juan filed a complaint alleging causes of 

action for negligence and strict products liability against Catalina 

and others. On August 21, 2013 Roberto’s children, Isabella

Angeline and Roberto Angel Lasarte, and Roberto’s parents,

Maria and Roberto Manuel Lasarte, filed a complaint alleging 

wrongful death causes of action for negligence and strict products

liability against Catalina and others.

On July 8, 2015 the plaintiffs amended their respective 

complaints to name Rotarex as a defendant. The cases were 

consolidated for trial.

B. Plaintiffs’ Motion in Limine

Before trial, plaintiffs filed a motion in limine to exclude 

evidence of a prior settlement with Rotarex. Catalina opposed

the motion, arguing evidence of the settlement was admissible to 

impeach the credibility of plaintiffs’ expert witnesses “about how 

they changed their testimony concerning the cause of the 

accident” after the settlement. The trial court granted plaintiffs’ 

motion in part, allowing Catalina to use evidence of the 

settlement only “to impeach expert witnesses who have changed 

their opinions if they offer evidence concerning why they changed 

their opinion.”

C. Testimony at Trial

1. The explosion and warning label

On June 13, 2012 Juan and Roberto were at Noswerks, a 

business owned by Roberto. Roberto sold performance auto parts 
4

and serviced cylinders provided by his customers by refilling the 

cylinders with nitrous oxide for auto racing. On that day,

Roberto asked Juan to hand him something. Then there was an 

explosion, which killed Roberto and seriously injured Juan. Juan 

woke up in the hospital and did not recall what had happened. 

The last thing Juan remembered was Roberto saying to him, 

“‘[C]an you hand me that[?]’” Juan did not know whether 

Roberto was filling a cylinder with nitrous oxide when the 

explosion occurred.

Catalina manufactured and sold the cylinder that exploded, 

which was intended to be filled with carbon dioxide for use with 

carbonated beer and soda. The cylinder was equipped with a 

Rotarex “high-flow tank” valve that was used to transfer nitrous 

oxide from an external tank into the cylinder. The Rotarex valve 

contained a “rupture disc,” which is a small piece of metal that is 

designed to rupture before the tank explodes. The cylinder was 

labeled “B20,” which was intended to denote that it was a 

“beverage cylinder.” Affixed to the cylinder was the following 

warning label: “A liquefied gas cylinder can be dangerous. 

Improper valve installation, filling, transporting, use, storage, 

maintenance, inspection, retesting, and disposal may result in 

cylinder failure, property damage, personal injury and/or death. 

Keep out of reach of children. . . . Never fill a condemned 

cylinder, a cylinder of questionable integrity, a cylinder requiring 

retesting, or a cylinder designed for another service. . . . Use only 

by trained professionals and designated charge, in a safe 

environment, and when in retest intervals.”

Catalina also manufactures cylinders to hold nitrous oxide

for use in auto racing. Catalina’s carbon dioxide and nitrous 

oxide cylinders have the same general appearance; both are made 
5

from aluminum in the same size and shape. Catalina 

manufactures its carbon dioxide and nitrous oxide cylinders in 

the same way, using “cutting oil” in the process that can leave 

hydrocarbon residue in the cylinder. After the manufacturing 

process, Catalina cleans the cylinders. Catalina then uses a 

third-party service to test its nitrous oxide cylinders for 

remaining hydrocarbon, but it does not test the carbon dioxide 

cylinders. Catalina sells only empty cylinders and does not sell 

any gas.

Plaintiffs’ expert Dr. David Lenorovitz testified it was 

hazardous to use Catalina’s carbon dioxide cylinder to hold

nitrous oxide and the label on the carbon dioxide cylinder that 

exploded did not effectively communicate the hazard, especially 

given that the warning contained many words in a small area.

2. The testimony of Drs. Romig and Stevick

Dr. Joe Romig testified for plaintiffs as an expert in 

astrophysics and geophysics. He opined compressed nitrous oxide 

can react with hydrocarbon, creating a combustion reaction and 

releasing energy. High pressure of 3,600 to 4,000 pounds per 

square inch would have caused the cylinder that exploded to 

rupture. Although the cylinder was equipped with a valve 

containing a rupture disc designed to burst at 3,000 pounds per 

square inch of pressure, thereby relieving the excessive pressure, 

the disc did not “pop.” Dr. Romig believed this could have been 

due to the rapid rate at which the pressure rose in the cylinder, 

which could have caused the cylinder to explode before the disc 

ruptured.

Dr. Romig gave plaintiffs’ counsel his initial opinion in 

February 2016 that an internal explosion in the cylinder caused 
6

the accident, but he was not asked to perform further work on the 

subject until March 2018. On cross-examination, Catalina’s 

attorney, Fred Blum, asked Dr. Romig whether he was told 

before February 2016 that there was a defect in the pressure 

relief valve attached to the cylinder. Dr. Romig stated he was 

told “the holder for the valve for the burst dis[c] was 20 percent 

smaller than it should have been.” At that time, Dr. Romig was 

aware plaintiffs “were looking at the pressure relief valve and 

also wanted to consider the internal explosion.” Blum inquired, 

“Now, when they called you up again in . . . 2018, were you told 

that the reason they wanted now to get back to you and 

reevaluate your opinion was because the case against the valve 

people had settled?” Dr. Romig responded he was not told about 

the settlement at that time, although he learned of it later. 

Dr. Romig testified that when plaintiffs’ attorney Daniel Balaban

contacted him in 2018, Balaban “wanted [him], based on what 

[he] had done before, to look at the internal explosion.” Balaban 

later set up a phone call between Dr. Romig and Dr. Glen 

Stevick.

Dr. Stevick testified for plaintiffs as an expert in 

mechanical engineering and failure analysis. Dr. Stevick opined 

that if hydrocarbon is present in a cylinder being filled with 

nitrous oxide, static charges in the hose could cause “a very 

violent ignition or explosion.” By examining the remains of the 

cylinder that exploded at Noswerks under ultraviolet light, 

Dr. Stevick identified the presence of hydrocarbon, which he 

believed caused the explosion. On cross-examination, Blum 

asked Dr. Stevick whether he had earlier declared under penalty 

of perjury that the explosion would not have occurred if the 

Rotarex valve and rupture disc attached to the cylinder had not 
7

malfunctioned. Dr. Stevick replied, “Yes, I believed that at the 

time.” Dr. Stevick had believed the valve was defective because if

the rupture disc had been paired with the wrong holder, “that 

was clearly going to increase the pressure” at which the disc 

would rupture. Dr. Stevick acknowledged he had previously 

opined Rotarex should have warned the user about the potential 

risk of mispairing the disc and holder, “[o]r supplied a device that 

[is] already welded together so you can’t mix them up.”

Dr. Stevick explained he now believed a nondefective valve 

would have slightly lessened the intensity of the explosion, but he 

did not think “it ha[d] a chance with this fast of a detonation.” 

Dr. Stevick attributed his change in opinion to his more complete 

review of the evidence and more precise calculations. Blum 

asked Dr. Stevick whether it was correct he decided more closely 

to examine the cause of the explosion “only after the settlement 

was reached with Rotarex.” Dr. Stevick replied he did not know 

of the settlement at the time and learned of it later, but he could 

not recall when.

The trial court then asked a juror question of Dr. Stevick 

that read, “‘When did your lab first invoice for testing the 

Catalina Cylinders explosion theory?’” Dr. Stevick responded it 

was on April 5, 2018. The court then read a follow up juror 

question that asked, “‘When did your lab last invoice for the 

testing related to the Rotarex disc theory?’” Dr. Stevick answered 

February 28, 2018.

D. Catalina’s Closing Argument

During his closing argument, Blum addressed the 

settlement between plaintiffs and Rotarex, arguing, “Dr. Stevick 

not only makes assumption after assumption after assumption, 
8

but he does it after the plaintiffs settle with Rotarex and he does 

it after he claims that Rotarex is the sole cause; the settlement 

happens and now it’s Catalina Cylinders. [¶] . . . He’s a gun for 

hire. And for those of you that believe that this is a coincidence 

he changed his mind, I’ll give you one fact or piece of testimony. 

And it actually comes from the mouth of one of the jurors, the 

question. [¶] One of the questions from the juror asked 

Dr. Stevick, when did you stop billing on Rotarex. [¶] I’m not 

going to tell you who, but whoever it is, give yourself a pat on the 

back. The date he said the last bill was February 28th. The 

settlement, February 27th. So they stopped billing the day after 

the settlement. And he said I don’t know when the settlement 

happened. It’s just [an] amazing coincidence.”

Later in his closing, Blum returned to the subject of the 

settlement, arguing, “So at the end of the day, what we do have is 

a valve that everybody says was malfunctioning. We have a 

valve manufacturer who should have given a warning. We have 

a valve that was put together the wrong way. And as a result, it 

didn’t blow when it should have blown. [¶] . . . And remember, 

other than Dr. Stevick they never put on a witness that said . . . 

that it operated properly. [¶] So when we look at percentages, 

the majority of the liability, the majority of the fault goes to 

Rotarex. They’re the party who was responsible according to the 

plaintiffs up until the moment they settled with Rotarex. And

then Dr. Stevick changed his mind after the settlement. [¶] Up 

until the settlement, it was Rotarex’s fault. Up until the 

settlement, Rotarex should have done a cost benefit analysis and 

their failure to do it caused the damage. Up until the settlement, 

Rotarex should have warned, but they didn’t. [¶] Up until the 

settlement, Dr. Stevick concluded that had it not been for 
9

Rotarex there would not have been the deaths. His decision to 

change his mind smells. It doesn’t pass the smell test. And the 

way it occurred with plaintiffs’ attorneys calling up Dr. Romig 

and then Dr. Romig . . . intervening and then starting to work 

dealing with Catalina increases the stench. [¶] Remember, 

February 28th, he stops working. April 4, he starts on Catalina 

Cylinders. He’s not doing anything in between. The April 4th 

date ties into Dr. Romig’s testimony as to when they have this 

conference call, which was occasioned by Mr. Balaban calling 

Dr. Romig and saying let’s start on the Catalinas. It reeks. The 

true fact is, the party they settled with was the party that was 

responsible.”

At this point, Balaban objected, and Blum responded, “I’ll 

clean it up, Your Honor.” The trial court made no ruling, and

Blum continued, “I’m not asking you to say the settlement is 

evidence of anything except [the] motive as to why they changed 

their mind. I want to be clear on that. And you shouldn’t 

conclude that from a settlement Rotarex was responsible. That 

would be improper. [¶] But you can conclude that it was the 

motive that caused Dr. Stevick to change his mind. And it was 

the motive that caused Mr. Balaban to call up Dr. Romig and say 

let’s start working against Catalina Cylinders. [¶] That’s proper 

and that’s the reasonable assumption to make. It’s the motive. 

It’s the reason why.”

After Blum completed his argument, the trial court stated 

outside the presence of the jury, “You know, Mr. Blum, you’re an 

excellent lawyer and you gave for the most part an excellent 

closing argument, but there were . . . points that really troubled 

me.” The trial court expressed concern with Blum’s statement 

“the true facts here is the party that settled was the party 
10

responsible. [¶] Now, that might have just slipped out, but that 

is contrary to the jury instruction that I told them, that I said 

that you can only—that you can’t use the fact of the settlement 

for anything related to responsibility.”

When the jury returned, the trial court instructed, “As I 

previously instructed before the closing arguments, you are not 

allowed to consider the settlement to determine responsibility for 

any harm. You may consider the evidence only to decide whether 

a witness is biased or prejudiced because of the settlement and 

whether his testimony is believable.”

E. The Verdict and Judgment

On August 2, 2018 the jury reached a verdict and returned 

the special verdict form. Question 1 on the special verdict form 

asked, “Was Defendant Catalina Cylinders negligent?” The jury 

answered, “No.” The form then instructed the jury to skip

question 2 (based on a “no” answer to question 1). The jury did 

not answer question 2, which asked whether Catalina’s 

negligence was a substantial factor in causing the harm.

The jury then answered the following questions on 

plaintiffs’ strict liability failure to warn claim:

“3. Did Defendant Catalina Cylinders manufacture the 

subject cylinder?” The jury marked, “Yes.”

“4. Did the subject cylinder have potential risks that were 

known or knowable in light of the scientific knowledge that was 

generally accepted in the scientific community at the time of 

manufacture?” The jury marked, “Yes.”

“5. Did the potential risks present a substantial danger to 

persons using or misusing the subject cylinder in an intended or 

reasonably foreseeable way?” The jury marked, “Yes.”
11

“6. Would ordinary persons have recognized the potential 

risks?” The jury marked, “No.”

“7. Did defendant Catalina Cylinders fail to adequately 

warn or instruct of the potential risks?” The jury marked, “No.”

The jury reached its verdict on question 7 by a vote of nine

to three, and therefore it did not answer any further questions. 

Question 8 asked the jury, “Was the lack of sufficient instructions 

or warnings a substantial factor in causing harm to Roberto J. 

Lasarte and Juan Lasarte?” Had the jury answered question 8 in 

the affirmative, the verdict form instructed the jury to answer 

further questions regarding damages and comparative fault, 

including question 19, which asked the jury to apportion 

responsibility among Catalina, Rotarex, Roberto, and Custom 

Performance (which brought the exploded cylinder to Noswerks 

for refilling). 

On September 19, 2018, based on the jury’s findings on the 

special verdict form, the trial court entered judgment in favor of

defendants.

F. Plaintiffs’ Motion for a New Trial

On October 4, 2018 plaintiffs filed a notice of intention to 

move for a new trial. In their new trial motion, plaintiffs argued, 

among other things, Blum committed prejudicial misconduct by 

arguing in closing the Rotarex settlement demonstrated Catalina 

was not liable. Plaintiffs further argued individual jurors 

committed prejudicial misconduct by asserting during 

deliberations the settlement demonstrated Rotarex’s 

responsibility for the harm. Plaintiffs attached declarations from

three jurors. Juror E. Lira declared, “During deliberations, some 

of the jurors mentioned Rotarex and the fact that there had been 
12

a settlement with them and the plaintiff[s]. Some of the jurors 

said during deliberations that plaintiffs got money from Rotarex 

and if they settled out of court it was because Rotarex was 

admitting fault, so it’s not Catalina Cylinders[’] fault, it’s 

Rotarex’s fault. [¶] . . . When we first walked into the room, 

before we started deliberations, Juror . . . Soto said ‘I do not 

believe the family deserves anything’ and that ‘Catalina 

Cylinders should not be held responsible.’” Juror N. Flores 

declared, “During deliberations, some of the jurors mentioned 

Rotarex and their settlement and that Rotarex was responsible 

for this.”2

In opposition, Catalina argued any attorney misconduct 

was cured by the trial court’s admonitions and plaintiffs failed to 

show prejudicial juror misconduct. Catalina filed declarations 

from two jurors. Juror D. Soto declared, “Our deliberations were 

based on the special verdict form, and we went question by 

question. As such, the focus was on Catalina Cylinders’ liability, 

and we did not really discuss the family. [¶] . . . The majority of 

our deliberations focused on whether the Catalina Cylinders’ 

warning label was adequate. [¶] . . . We took out the label and 

passed it around for each juror to review. Each juror had the 

opportunity to discuss his or her opinion as to the warning label. 

Everyone listened to each person and everyone had a chance to 

speak. [¶] . . . [¶] . . . [¶] . . . I remember the mention of 

‘Rotarex’ at some point while with my fellow jurors. I cannot 

remember whether the word ‘settlement’ was also discussed in 

conjunction with the ‘Rotarex’ reference. I cannot remember 

2 Plaintiffs also attached a declaration from juror D. Hall, 

which did not include statements on juror misuse of the 

settlement evidence.
13

whether the ‘Rotarex’ referral was during actual deliberations or 

after the verdict was read and we were waiting—with the 

alternates—in the jury room for the Judge to speak to us. In any 

event, the mention of ‘Rotarex’ had no impact on my decision as 

to Catalina Cylinders’ negligence or failure to warn.” Juror 

D. Ancayan declared, “While I recall someone mentioning the 

Rotarex settlement, it was brought up after our deliberations 

were over, and the verdict was reached. The mention was made 

when we were waiting in the deliberation room for the Judge to 

come and speak to us.”

The trial court granted in part and denied in part plaintiffs’

motion. In its written ruling, the court held plaintiffs’ juror 

declarations regarding the Rotarex settlement were admissible. 

The court found “the Lira Declaration is the most specific and the 

most credible of the declarations on this point. Indeed, Juror 

Flores more generally corroborated Juror Lira. That the subject 

was discussed, Juror Lira’s statements [are] supported by the 

Defense declarants, Juror[s] Soto and Ancayan. The Court is 

mindful that Juror Lira was the sole juror to vote against the 

nine juror majority on both question 1 and question 7 in the 

special verdict form, which might suggest a strongly held view in 

favor of the Plaintiffs. However, the Court still believes Juror 

Lira was credible. The Court observed Juror Lira during the 

trial. He appeared focused and alert throughout and in the 

Court’s view, conscientiously served as a juror. Hence, the 

admissible evidence demonstrates misconduct in connection with 

the Rotarex settlement during the jury deliberations, which 

raises a presumption of prejudice.”

The trial court also found Blum’s references to the 

settlement during closing argument constituted misconduct, 
14

stating, “The settlement between the Plaintiffs and Rotarex was 

the subject of a motion in limine and a spirited argument by 

Plaintiffs’ counsel on Motion in Limine No. 6. In the end, the 

Court ruled the settlement could not be used to suggest Rotarex 

was responsible for the explosion but could be used for the limited 

purpose of impeaching the expert opinion testimony of 

Dr. Stevick. Dr. Stevick changed his expert opinion after the 

settlement. At the time of Rotarex’s summary judgment motion, 

Dr. Stevick blamed the Rotarex valve for the explosion. He 

testified he changed his opinion to implicate Catalina Cylinders 

after he received additional information from counsel and 

another of Plaintiffs’ expert[s], Dr. Romig. The Court held on the 

motion in limine that the intervening settlement was admissible, 

not to prove liability, but only to impeach the second opinion by 

Dr. Stevick. [¶] . . . The only permissible argument here was 

that Dr. Stevick’s second opinion should not be believed because 

it came after Rotarex settled. [¶] Counsel did not limit the 

argument to the change in testimony of Dr. Stevick. Instead, 

counsel stated ‘the true fact is, the party they settled with was 

the party that was responsible,’ . . . after a series of statements 

that began ‘[u]p until the settlement, it was Rotarex’s fault.’ . . . 

By tying the settlement with Rotarex to Rotarex’s fault, defense 

counsel went beyond merely using the settlement to impeach 

Dr. Stevick. Instead[,] the argument implicated the very policy 

reason why settlement evidence is explosive and usually 

excluded. The argument was not that Dr. Stevick’s second 

opinion should be disbelieved because he changed it after . . . 

Rotarex settled, though counsel did mention this as well. But 

counsel’s argument largely neglected the proper use—
15

Dr. Stevick’s impeachment, and focused on the improper use, 

Rotarex settled because it was responsible for the explosion.”

The court noted Balaban’s objection and Blum’s attempt to 

“clean it up,” but “ultimately [Blum] did not. Instead, counsel 

said ‘I’m not asking you to say the settlement is evidence of 

anything except [the] motive as to why they changed their 

mind. . . . And you shouldn’t conclude that from a settlement 

Rotarex was responsible. That would be improper.’ Then counsel 

identified the only admissible reason to mention Rotarex at all. 

‘But you can conclude that it was the motive that caused 

Dr. Stevick to change his mind.’ That is exactly where defense 

counsel should have left it. But defense counsel continued that 

the settlement was relevant to ‘the motive that caused 

Mr. Balaban to call up Dr. Romig and say let’s start working 

against Catalina [C]ylinders.’ Mr. Balaban’s motive to ask for an 

expert opinion from Dr. Romig is irrelevant.”

As to the prejudice to plaintiffs caused by the attorney and 

juror misconduct, the trial court reasoned, “That the additional 

instruction and counsel’s own statement were not enough [to 

direct the jury], is a testament to the power of settlement 

evidence and a cautionary tale about the wisdom of Evidence 

Code [section 1152] and CACI [No.] 217. The Court finds that the 

argument caused prejudice to Plaintiffs because the additional 

instructions were insufficient to alleviate the taint of the 

improper use of the Rotarex settlement. In the proverbial sense, 

once the improper argument was made, neither the Court nor 

counsel could put Humpty Dumpty back together again. [¶] But 

even if the closing argument was not prejudicial, there is 

admissible evidence some jurors disregarded the instructions and 

counsel’s later statement about the use of the settlement. . . . 
16

The evidence raised a presumption of prejudice that was not 

rebutted by the evidence from one juror, which was less credible 

[than] the other admissible evidence, that the jurors mentioned 

the Rotarex settlement only after the verdict was reached.”

The court continued, “The lawyer and juror misconduct 

concerning the Rotarex settlement impacts the two causes of 

action differently . . . . On the negligence claim, the jurors were 

concerned with Rotarex only after they found Catalina 

negligent . . . . [¶] It is also possible someone could have 

mentioned Rotarex on the substantial factor question, that is, 

Catalina[’s] conduct was not a substantial factor because Rotarex 

settled and was responsible. But the jurors never got to 

Question 2. [¶] In the Court’s view, it is unlikely the jury’s vote 

in favor of [Catalina] on Question 1 had anything to do with 

Rotarex or the settlement. It is significant that the credible juror 

declarations do not state when the improper use of the Rotarex 

settlement occurred. . . . The Court cannot conclude that the 

misuse of the Rotarex settlement happened before the first 

question on negligence was answered. On this record, it is more 

probable it did not. [¶] In addition, the Court heard the evidence 

on negligence and in the Court’s view, the verdict would have 

been the same on Question 1, even if a juror said Rotarex was 

responsible because of the settlement at some point in their 

deliberations. Accordingly, the Court cannot conclude that in the 

absence of the juror and defense misconduct concerning 

negligence, it is reasonably probable the jury would have reached 

a different result.

However, as to the strict liability cause of action, the trial 

court concluded, “It is easy to see how absent the misuse of the 

Rotarex settlement, the verdict on this claim may have been 
17

different. . . . Catalina’s affirmative defense that Rotarex was the 

cause of the explosion was a complete defense to the failure to 

warn cause of action. . . . However, there are no questions on the 

special verdict form concerning this affirmative defense. If the 

jurors found that Catalina prevailed on the affirmative defense, 

they would have voted against the Plaintiffs on one of the strict 

liability questions. That is exactly what the jury did. [¶] More 

importantly, the affirmative defense would have necessarily 

caused the jurors to discuss Rotarex’s responsibility when 

answering the questions concerning strict liability. Unlike 

Question 1 which had nothing to do with Rotarex and focused 

entirely on Catalina’s conduct, the jurors had to consider Rotarex 

on the strict liability issue and that it is most likely when any 

improper use of [the] settlement occurred. It would explain the 

decision to find for Catalina on Question 7. For purposes of this 

motion, the combination of unrebutted presumed prejudice and 

the misuse of the settlement on the 9-3 vote on Question 7, leads 

the Court to conclude that a new trial is warranted on the strict 

liability failure to warn cause of action.”

Catalina timely appealed.

DISCUSSION

A. Standard of Review

An order granting a new trial, including on grounds of 

attorney or juror misconduct, is reviewed for an abuse of 

discretion and “‘must be sustained on appeal unless the opposing 

party demonstrates that no reasonable finder of fact could have 

found for the movant on [the trial court’s] theory.’” (Lane v. 

Hughes Aircraft Co. (2000) 22 Cal.4th 405, 409; accord, Nissan 
18

Motor Acceptance Cases (2021) 63 Cal.App.5th 793, 811 (Nissan) 

[evaluating trial court’s order granting new trial based on juror 

misconduct for an abuse of discretion]; Whitlock v. Foster 

Wheeler, LLC (2008) 160 Cal.App.4th 149, 159 (Whitlock) [“where 

the trial court supplies a statement of reasons as required by 

[Code of Civil Procedure] section 657, as the trial court did here, 

the applicable standard of review is abuse of discretion”].)3 

“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.” (Jiminez v. Sears, Roebuck & Co.

(1971) 4 Cal.3d 379, 387; accord, Nissan, supra, 63 Cal.App.5th at 

p. 811.) “[A]n appellant seeking to overturn a trial court’s 

discretionary ruling [granting a motion for new trial] faces ‘more 

than a daunting task [and] an uphill battle’ in demonstrating the 

court exercised its discretion arbitrarily and unreasonably.” 

(Nissan, at pp. 821-822 [affirming trial court’s grant of new trial 

based on juror misconduct in a lawsuit against car dealerships 

where juror failed to disclose she had been a defendant in 

multiple civil actions and had family members with connections 

to other car dealerships].)

“In evaluating the evidence, we must draw all inferences in 

favor of the prevailing party and accept the trial court’s 

resolution of conflicts in the evidence.” (Nissan, supra, 

63 Cal.App.5th at p. 811; accord, Whitlock, supra, 

3 It is undisputed the trial court stated its reasons for 

granting the new trial motion in compliance with Code of Civil 

Procedure section 657.
19

160 Cal.App.4th at p. 160 [“[I]t is the trial court that must assess 

the credibility of affiants or declarants, and the trial court is 

entitled to believe one over the other.”].) “We also must extend 

deference to orders granting new trials because ‘“[t]he trial judge 

is familiar with the evidence, witnesses and proceedings, and is 

therefore in the best position to determine whether, in view of all 

the circumstances, justice demands a retrial.”’” (Nissan, at 

p. 821; accord, Whitlock, supra, 160 Cal.App.4th at p. 159.)

“[O]ur review for abuse of discretion extends to all aspects 

of the trial court’s order granting a new trial, including the trial 

court’s prejudice ruling.” (Whitlock, supra, 160 Cal.App.4th at 

p. 160; accord, People v. Ault (2004) 33 Cal.4th 1250, 1255 (Ault) 

[“[A]n order granting, as opposed to denying, a new trial is 

reviewed liberally, particularly with regard to the trial court’s 

finding that an error or irregularity in the original trial was 

prejudicial.”].) Where juror misconduct is shown, “[t]his analysis 

of prejudice ‘is different from, and indeed less tolerant than,’

normal harmless error analysis, because jury misconduct 

threatens the structural integrity of the trial.” (McDonald v. 

Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, 

266; accord, People v. Nesler (1997) 16 Cal.4th 561, 579.) 

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

New Trial

1. The trial court did not abuse its discretion in finding 

attorney misconduct

“Section 657, subdivision (1), of the Code of Civil Procedure 

provides that a new trial may be granted for an ‘[irregularity] in 

the proceedings of the court, jury or adverse party . . . by which 

either party was prevented from having a fair trial.’ It is well 
20

settled that misconduct of counsel is such an irregularity and a 

ground for new trial.” (City of Los Angeles v. Decker (1977) 

18 Cal.3d 860, 870; accord, Rayii v. Gatica (2013) 

218 Cal.App.4th 1402, 1411 [“Attorney misconduct is a ground for 

a new trial.”]; Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 

144, 148 [“Attorney misconduct is an irregularity in the 

proceedings and a ground for a new trial.”].)

“[M]isconduct by counsel in closing argument in civil cases 

can constitute prejudicial error entitling the aggrieved party to 

reversal of the judgment and a new trial. ‘It is . . . well settled 

that misconduct [by counsel] has often taken the form of 

improper argument to the jury, such as by urging facts not 

justified by the record or suggesting that the jury may resort to 

speculation [citation]; by informing the jury that an injured party 

has been compensated by a codefendant [citation]; and by 

informing the jury of an offer of settlement and compromise.’”

(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 802 (Cassim); 

accord, City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 870.) 

“‘[T]here is no inherent requirement that the misconduct be of a 

continuous nature’ and . . . a single instance of misconduct can 

justify reversal.” (Cassim, at p. 803; accord, Hoffman v. Brandt

(1966) 65 Cal.2d 549, 551 & fn. 1, 555 [defense attorney’s single 

comment during closing argument that a verdict for the plaintiff 

would force the elderly defendant into a home for the indigent

was prejudicial misconduct, uncured by trial court’s equivocal 

admonition the argument was not evidence].)

Evidence Code section 1152, subdivision (a), provides in 

relevant part, “Evidence that a person has, in compromise . . . , 

furnished or offered or promised to furnish money or any other 

thing . . . to another who has sustained . . . loss or damage . . . is 
21

inadmissible to prove his or her liability for the loss or damage or 

any part of it.” (See Diamond v. Reshko (2015) 239 Cal.App.4th 

828, 843 [Evidence Code section 1152, subdivision (a), “codifies 

the rule that evidence of a settlement agreement between a 

plaintiff and one or more joint tortfeasors is not admissible to 

prove the liability of the settling tortfeasor”].) However, 

“evidence of a plaintiff's settlement with one or more defendants 

is admissible at trial to prove witness bias and to prevent 

collusion.” (Diamond, at p. 843; accord, Zelayeta v. Pacific 

Greyhound Lines (1951) 104 Cal.App.2d 716, 729 [settlement 

“evidence may be admissible to show bias or prejudice of an 

adverse witness”].)

An attorney’s use of evidence of a settlement to argue for 

liability where liability is disputed constitutes attorney 

misconduct. (See Shepherd v. Walley (1972) 28 Cal.App.3d 1079, 

1083-1084 [finding prejudicial misconduct where defense

attorney argued in closing a dismissed defendant’s settlement 

with plaintiff “‘gives us a pretty good idea of who the plaintiff 

thinks was responsible and liable’”]; Granville v. Parsons (1968) 

259 Cal.App.2d 298, 302-304 [attorney misconduct prejudicial 

where trial court ordered evidence of settlement could be used 

only to argue witness credibility, but counsel in closing argued 

“‘[t]hey know who was the guilty party in this accident because 

you heard’” a prior defendant settled].) However, “[a]ttorney 

misconduct can justify a new trial only if it is reasonably probable 

that the party moving for a new trial would have obtained a more 

favorable result absent the misconduct.” (Rayii v. Gatica, supra, 

218 Cal.App.4th at p. 1411; accord, Cassim, supra, 33 Cal.4th at 

pp. 801-802; Garcia v. ConMed Corp., supra, 204 Cal.App.4th at 

p. 149 [“In order to justify a new trial [for attorney misconduct], 
22

the party must demonstrate that the misconduct was 

prejudicial.”].) 

In evaluating whether attorney misconduct was prejudicial, 

courts consider “‘(1) the nature and seriousness of the 

misconduct; (2) the general atmosphere, including the judge’s 

control of the trial; (3) the likelihood of actual prejudice on the 

jury; and (4) the efficacy of objections or admonitions under all 

the circumstances.’” (Bigler-Engler v. Breg, Inc. (2017) 

7 Cal.App.5th 276, 296; accord, Martinez v. Department of 

Transportation (2015) 238 Cal.App.4th 559, 568, 570 [numerous 

references by counsel for defendant public agency during trial to 

the jury’s self-interest as taxpayers, plaintiff’s loss of job to show 

his laziness, and comparison of logo on plaintiff’s motorcycle to 

Nazi imagery constituted prejudicial misconduct].)

Catalina contends the trial court abused its discretion in 

granting plaintiffs’ new trial motion because Blum’s closing 

argument did not rise to the level of attorney misconduct. 

Catalina argues Blum’s statement during closing argument that 

“the party [plaintiffs] settled with was the party that was 

responsible” simply “ma[d]e a logical observation concerning 

what the jury had heard.” Catalina also asserts the court’s in 

limine ruling did not “limit how Catalina’s attorney could use the 

evidence of the settlement to make his point that [Dr.] Stevick 

should not be believed.” These contentions lack merit.

As discussed, the trial court ruled on plaintiffs’ motion in 

limine that evidence of the settlement with Rotarex could only be 

“used to impeach expert witnesses who have changed their 

opinions if they offer evidence concerning why they changed their 
23

opinion.”4 During Blum’s cross-examination of Dr. Stevick, Blum 

properly used the settlement for this limited purpose. In his 

closing argument, Blum likewise pointed out that Dr. Stevick 

continued to bill plaintiffs for his expert opinions on the Rotarex 

valve until one day after the plaintiffs and Rotarex settled, 

arguing this could not be a coincidence. But when Blum’s 

argument reached the apportionment of fault, he returned to the 

subject of the settlement, stating, “So when we look at 

percentages, the majority of the liability, the majority of the fault 

goes to Rotarex. They’re the party who was responsible according 

to the plaintiffs up until the moment they settled with Rotarex. 

And then Dr. Stevick changed his mind after the settlement.” 

(Italics added.) At this point Blum crossed the line from arguing 

Dr. Stevick’s bias to improperly linking Rotarex’s settlement with 

its responsibility for the explosion.

Blum continued by arguing Dr. Stevick’s “decision to 

change his mind” did not “pass the smell test.” But this time 

Blum invoked the settlement to explain why plaintiffs changed 

their position, not Dr. Stevick. Blum argued plaintiffs’ attorneys’

action in then “calling up Dr. Romig” and focusing on Catalina 

“increases the stench.” After further noting the timing of 

Balaban calling Dr. Romig to “start on the Catalinas,” Blum 

added, “The true fact is, the party they settled with was the party 

that was responsible.” Balaban objected, and Blum offered to 

“clean it up,” which the trial court allowed.

Blum clarified that the jury “shouldn’t conclude that from a 

settlement Rotarex was responsible. That would be improper.” 

However, the jury could conclude that the settlement was the 

4 Plaintiffs do not contend the trial court erred in admitting 

the settlement evidence for purposes of impeachment.
24

“motive” that caused Dr. Stevick to change his opinion. This 

distinction was proper. But then Blum again crossed the line in 

emphasizing that the settlement “was the motive that caused 

Mr. Balaban to call up Dr. Romig and say let’s start working 

against Catalina Cylinders.”

As plaintiffs contend, Blum’s argument—both before and 

after the attempted “clean it up”—violated the court’s in limine 

ruling because Blum’s use of the settlement to impugn the 

motivation of plaintiffs was not properly limited to impeachment 

of expert witnesses who changed their opinions, but instead 

falsely implied plaintiffs held Catalina blameless until they 

settled with Rotarex. To the extent Catalina contends Blum’s 

argument involved no such implication, we defer to the trial 

court’s finding to the contrary, drawing all inferences in favor of 

the trial court’s ruling. (Nissan, supra, 63 Cal.App.5th at p. 929.)

Moreover, Blum’s attempt to remedy his improper 

statement—that the party who settled with plaintiffs was 

responsible—was not successful. Nor was the trial court’s 

subsequent admonition to the jury not “to consider the settlement 

to determine responsibility for any harm.” As shown by Lira’s

declaration, some of the jurors discussed during deliberations 

that if plaintiffs settled with Rotarex, “it was because Rotarex 

was admitting fault, so it’s not Catalina Cylinders’ fault, it’s 

Rotarex’s fault.” Flores likewise said that during deliberations

“some of the jurors mentioned Rotarex and their settlement and 

that Rotarex was responsible for this.” The trial court found 

Lira’s declaration was the most specific and credible of the 

declarations. And the Soto declaration submitted by Catalina 

confirmed there were discussions of the Rotarex settlement in the 
25

jury room, although she was not sure the timing of the 

discussion.

Catalina fails to distinguish Granville v. Parsons, supra, 

259 Cal.App.2d at pages 303-304, which is on all fours. There, 

the Court of Appeal concluded the defense attorney committed 

prejudicial misconduct after the trial court ordered a settlement 

with a codefendant could be used only to argue witness 

credibility, but counsel in closing argued, “‘They know who was 

the guilty party in this accident because you heard that Mr. Short 

was a defendant in this action and settlement.” (Ibid.) Tobler v. 

Chapman (1973) 31 Cal.App.3d 568, relied on by Catalina, is 

distinguishable. The Court of Appeal in Tobler affirmed the trial 

court’s denial of plaintiffs’ claim of prejudicial attorney 

misconduct based on defense counsel’s reference at trial to 

plaintiffs’ dismissal of a codefendant midtrial. (Id. at pp. 577-

578.) But unlike here, the defense attorney in Tobler did not 

reference plaintiffs’ settlement of claims, stating only that 

“‘[w]hen the case was dismissed as to the [codefendants] this 

morning, it then became my duty to discuss the damages with 

you’” and “‘simply because there was a clear case of liability as to 

the [dismissed codefendants] doesn’t mean that the plaintiff has a 

liability case as to every defendant in this situation.’” (Id. at 

p. 577.)

Catalina was entitled to impeach Dr. Stevick with reference 

to the settlement agreement and to argue Rotarex was the party 

responsible for plaintiffs’ injuries, but it had to walk a fine line to 

separate the two arguments. Blum failed, linking his argument 

Dr. Stevick changed his opinion based on the settlement and his 

argument “the majority of the liability” rested with Rotarex. As 

the trial court observed, “By tying the settlement with Rotarex to 
26

Rotarex’s fault, defense counsel went beyond merely using the 

settlement to impeach Dr. Stevick.”

2. The trial court did not abuse its discretion in finding 

the attorney misconduct and juror misconduct were 

prejudicial

“Juror misconduct is one of the specified grounds for 

granting a new trial. (Code Civ. Proc., § 657, subd. 2.)” 

(Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345; accord, 

Whitlock, supra, 160 Cal.App.4th at p. 159.) “‘In ruling on a 

request for a new trial based on jury misconduct, the trial court 

must undertake a three-step inquiry. [Citation.] First, it must 

determine whether the affidavits supporting the motion are 

admissible. (Evid. Code, § 1150.) If the evidence is admissible, 

the trial court must determine whether the facts establish 

misconduct. [Citation.] Lastly, assuming misconduct, the trial 

court must determine whether the misconduct was prejudicial.’” 

(Whitlock, at p. 160; accord, Barboni, at p. 345.) If the reviewing 

court concludes admissible evidence establishes juror misconduct, 

prejudice is presumed unless rebutted. (People v. Marshall

(1990) 50 Cal.3d 907, 949; accord, People v. Honeycutt (1977) 

20 Cal.3d 150, 156 [“It is well settled that a presumption of 

prejudice arises from any juror misconduct.”]; Whitlock, at p. 162 

[“‘A showing of [juror] misconduct creates a presumption of 

prejudice.’”].)

The trial court must then determine whether, in light of the 

entire trial record, the presumption is rebutted because there is 

no substantial likelihood one or more jurors were impermissibly 

influenced to the detriment of the party moving for a new trial. 

(See Ault, supra, 33 Cal.4th at p. 1267 [affirming trial court’s 
27

granting of new trial where juror in child molestation case shared 

with other jurors story from outside source that a friend had been 

molested by her father but acted normally]; see also In re 

Manriquez (2018) 5 Cal.5th 785, 798 [finding juror concealment 

of childhood abuse was not prejudicial].)

Catalina does not argue plaintiffs’ juror declarations were 

inadmissible or that the declarations do not support the trial 

court’s finding of juror misconduct. Catalina also acknowledges 

the trial court’s finding of juror misconduct created a 

presumption of prejudice to plaintiffs, shifting the burden to 

Catalina to rebut the presumption. But Catalina contends it 

rebutted the presumption by relying on the special verdict form, 

in which the jury found Catalina’s warnings were adequate 

(question 7). Catalina argues this finding did not implicate 

Rotarex’s responsibility for the harm, and the jury did not reach 

the special verdict form questions asking whether the lack of a 

sufficient warning was a substantial factor in causing the harm 

(question 8) or the comparative responsibility of Rotarex question 

19).5 The trial court did not abuse its discretion in concluding 

5 We reject plaintiffs’ contention Catalina forfeited its 

argument the special verdict form rebutted the presumption of 

prejudice by not citing the applicable standard of review or 

providing an adequate factual analysis. Catalina has sufficiently 

briefed the issue of prejudice on appeal. Plaintiffs also argue 

Catalina failed to provide an adequate appellate record by 

omitting the parties’ evidentiary objections to the declarations 

submitted in support of and in opposition to plaintiffs’ new trial 

motion. This contention lacks merit because neither party argues 

the trial court abused its discretion in making its evidentiary 

rulings.
28

otherwise. 6

Catalina argues there was no reason to assume “the jury 

lacked the competence and basic understanding of its 

responsibility to read, understand, and answer the discrete 

question put to it” by the special verdict form. But the trial court 

found the Lira and Flores declarations established that some 

jurors failed to follow the trial court’s oral and written 

instructions by relying on the settlement as evidence of Rotarex’s 

liability and voicing that view to the other jurors during 

deliberations. This fact supports the trial court’s finding that the 

jurors who believed Rotarex was the responsible party because of 

the settlement likely cast their votes against finding Catalina 

liable on the strict liability cause of action by “vot[ing] against 

the Plaintiffs on one of the strict liability questions.”

Question 7 was the first question that directly focused on 

Catalina’s responsibility for the harm in the strict liability failure 

to warn section of the verdict form. Question 3 asked simply 

whether Catalina manufactured the subject cylinder. 

Questions 4 through 6 focused on the cylinder, not whether 

6 We consider the prejudicial impact of the attorney and 

juror misconduct together because the test for whether attorney 

misconduct was prejudicial asks both “the likelihood of actual 

prejudice on the jury” and “the efficacy of objections or 

admonitions under all the circumstances.” (Martinez v. 

Department of Transportation, supra, 238 Cal.App.4th at p. 568.) 

Because several jurors committed misconduct in making 

improper use of the Rotarex settlement during deliberations 

despite Blum’s attempt to “clean it up” and the trial court’s 

instructions, the attorney and juror misconduct together weigh 

heavily in favor of the trial court’s finding of prejudice.
29

Catalina or Rotarex was at fault (asking whether the cylinder 

had potential known risks, whether the risks presented a 

substantial danger to a user, and whether ordinary persons 

would have recognized the risks). It was question 7 that focused 

on Catalina, asking whether Catalina failed adequately to warn 

of the potential risks. Although the jury could have answered 

question 7 “yes,” then found Catalina not liable by voting “no” on 

question 8 (that the lack of a warning was not a substantial 

factor in causing harm), as plaintiffs’ counsel asserted at oral 

argument, it is not reasonable to assume that jurors who had 

gone “rogue” by improperly discussing Rotarex’s settlement

during deliberations then would have properly selected the most 

applicable question on which to determine that Catalina had no 

liability for the explosion. And as plaintiffs’ counsel pointed out, 

questions 4 through 6 are silent as to what potential risk the 

cylinder posed (that is, a risk from the cylinder itself or the 

valve). If a juror believed the potential known risk was the 

Rotarex valve attached to the cylinder, that juror may have voted 

“no” on question 7, believing Catalina did not fail adequately to 

warn about the dangerous condition created by the Rotarex valve, 

which was responsible for the explosion as shown by Rotarex’s 

settlement with plaintiffs. Moreover, if the jurors read and 

understood question 7 to focus on the narrow question of the 

adequacy of Catalina’s warning, there would have been no reason 

for the jurors to discuss the Rotarex settlement prior to reaching 

question 8, asking whether the lack of an adequate warning was 

a substantial factor in causing harm to Roberto and Juan.

That nine jurors voted “no” in response to question 7 

further supports the trial court’s prejudice finding. If even one of 

the nine jurors voted no on question 7 to absolve Catalina of 
30

liability based on his or her improper consideration of the 

settlement, that vote would have been determinative of the 

verdict. (See Weathers v. Kaiser Foundation Hospitals (1971) 

5 Cal.3d 98, 110 [“Since the verdict was nine to three, the 

disqualification for bias of any one of the majority jurors could 

have resulted in a different verdict.”]; Whitlock, supra, 

160 Cal.App.4th at p. 163 [juror misconduct in discussing 

evidence outside the trial record likely influenced “the decisive 

ninth vote in favor of the verdict”]; see also Martinez v. 

Department of Transportation, supra, 238 Cal.App.4th at p. 570 

[stating, in the context of overwhelming attorney misconduct, “[a]

jury prejudiced against a litigant and determined to find against 

that litigant is not one whose judgment can be trusted”].)

Catalina contends further the trial court’s reasoning in 

denying a new trial on negligence—that the jury did not reach 

the question of comparative liability—should have likewise 

caused the court to deny a new trial on the strict liability failure 

to warn. However, the court’s reasons for denying a new trial on 

negligence were not so limited. The court also observed that the 

evidence supporting the negligence claim was relatively weak 

compared to the strict liability failure to warn claim, such that it 

was unlikely the result would have been different absent the 

juror misconduct. Moreover, even if the court’s reasoning as to 

the negligence claim was flawed, plaintiffs have not appealed the 

court’s denial of a new trial on that cause of action, and that 

ruling is not before us.

Catalina’s attempt to minimize the impact of the jurors’ 

improper consideration of the Rotarex settlement by arguing it 

was unlikely to have influenced the jury’s deliberations runs 

counter to “[t]he strong public policy favoring settlement 
31

negotiations and the necessity of candor in conducting them” 

embodied in Evidence Code section 1152. (C & K Engineering 

Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 13; accord, 

Heimlich v. Shivji (2019) 7 Cal.5th 350, 360 [“Parties should be 

encouraged to make offers without fear that they will be treated 

as an admission of either liability or the minimal value of a 

claim.”].) As the trial court reasoned, the jury’s consideration of 

the Rotarex settlement to determine Catalina’s liability was 

precisely the danger the Legislature sought to ameliorate in 

Evidence Code section 1152, and it “implicated the very policy 

reason why settlement evidence is explosive and usually 

excluded.”

The trial court therefore did not abuse its discretion in 

determining on the entire trial court record that because of juror 

misconduct there was a substantial likelihood that at least one 

juror was impermissibly influenced to plaintiffs’ detriment. 

(Ault, supra, 33 Cal.4th at p. 1261.)

Catalina’s reliance on Romo v. Ford Motor Co. (2002) 

99 Cal.App.4th 1115 (Romo), cert. granted and judgment vacated 

by Ford Motor Co. v. Romo (2003) 538 U.S. 1028, disapproved by 

Ault, supra, 33 Cal.4th at p. 1272, is misplaced. In Romo, after 

the jury returned a verdict for the plaintiffs, the trial court 

granted a new trial on punitive damages based on juror 

misconduct, where one juror stated during deliberations she had 

viewed a television program on the defendants’ litigation strategy 

for defective vehicles and another juror shared that she had a 

dream in which a car manufactured by the defendant ran over 

several children, and she repeatedly stated the jury must “save 

the babies” from the defendant. (Romo, at pp. 1127-1129.) 

Reviewing the issue of prejudice de novo, the Court of Appeal 
32

reversed the trial court, reasoning prejudice was unlikely given 

that “[j]urors ordinarily are presumed to have followed the court’s 

instructions.” (Id. at p. 1131.) The Supreme Court in Ault, 

supra, 33 Cal.4th 1250 disapproved of Romo’s application of a de 

novo standard of review to the trial court’s grant of a new trial 

based on juror misconduct, instead of the applicable deferential 

abuse of discretion standard. (Ault, at p. 1272, fn. 15.) Moreover, 

in Romo the jury foreperson admonished the jury to disregard the 

juror’s description of the television program, and there was no 

further discussion of the juror’s dream after the trial court 

admonished the jury to decide the case solely on the law and facts 

presented at trial. (Romo, at pp. 1133-1134.) Here, the jurors 

who misused the settlement evidence did so after the court’s 

admonishment to the contrary, and there is no evidence the 

foreperson or any other juror admonished the jurors who 

improperly considered the Rotarex settlement.7 

7 Caldwell v. Paramount Unified School Dist. (1995) 

41 Cal.App.4th 189, Bristow v. Ferguson (1981) 121 Cal.App.3d 

823, and People ex rel. Department of Public Works v. Hunt (1969) 

2 Cal.App.3d 158, relied on by Catalina, are distinguishable. In 

all three cases the Courts of Appeal concluded the trial court had 

abused its discretion in granting a new trial, finding no likelihood 

of prejudice to the appellant. (Caldwell, at pp. 205-206; Bristow, 

at p. 828; Hunt, at p. 172.) However, none of the cases involved

juror misconduct. In Caldwell, the Court of Appeal concluded in 

an employment discrimination case the trial court erred in 

instructing the jury on the burden-shifting framework of 

McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. 

(Caldwell, at p. 206.) But the court found plaintiffs had not 

shown a likelihood of prejudice because the jury found the 

defendant had not discriminated against the plaintiff, so the jury 

did not reach the questions on the special verdict form that would 
33

DISPOSITION

The order is affirmed. Plaintiffs are to recover their costs 

on appeal.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

have been affected by the instructional error. (Ibid.) In Bristow, 

the Court of Appeal observed the erroneous instruction identified 

by the plaintiff was “plainly misleading, but in a direction 

favoring plaintiff.” (Bristow, at p. 828.) Hunt was a 

condemnation proceeding in which the jury awarded the 

condemnees $35,000 for their property that had been taken. 

(Hunt, at p. 160.) The trial court granted the condemnees’ motion 

for a new trial based on surprise where the plaintiff’s expert

appraiser unexpectedly testified the condemned property was 

worth only $27,200, but the condemnees were led to believe the 

expert would value the property at $33,000 to $35,000. (Id. at 

p. 162.) The Court of Appeal reversed, finding no likelihood of 

prejudice where the jury awarded the condemnees the higher 

value for the property. (Id. at p. 172.)