Filed 9/6/24 Hedayatzadeh v. North County Transit District CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

FARID HEDAYATZADEH,

Plaintiff and Appellant,

v.

NORTH COUNTY TRANSIT 

DISTRICT,

Defendant and Respondent.

 D081656

 (Super. Ct. No. 37-2017-

00014136-CU-PO-NC)

APPEAL from a judgment of the Superior Court of San Diego County, 

Cynthia A. Freeland, Judge. Affirmed. 

Khashayar Law Group and Daryoosh Khashayar for Plaintiff and 

Appellant. 

Lewis Brisbois Bisgaard & Smith, Jeffrey A. Miller, Daniel R. Velladao,

and Anthony E. Sonnett for Defendant and Respondent. 

Farid Hedayatzadeh (Hedayatzadeh) appeals following an adverse jury 

verdict in his lawsuit against North County Transit District (NCTD) alleging 

a dangerous condition of public property after Hedayatzadeh’s 19-year-old 

son, Javad, was tragically struck and killed by a train on property owned by 

NCTD. Specifically, Hedayatzadeh contends that the trial court prejudicially 

erred in sustaining certain objections during his counsel’s closing argument 
2

to the jury. We conclude that Hedayatzadeh’s contention lacks merit, and we 

accordingly affirm the judgment. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of September 24, 2016, 19-year-old Javad1 drove to 

Del Mar with friends. They parked at the end of 13th Street, which 

terminates at an ocean bluff. A railroad right-of-way owned by NCTD runs 

along the top of the ocean bluff, perpendicular to the end of 13th Street. 

People are able to walk around a guardrail at the end of 13th Street to cross 

the train tracks and reach the ocean bluff, as no fencing has been installed to 

prevent such access. NCTD is required to compile data about trespasser 

fatalities along its train tracks, which it must report to a federal agency. 

NCTD also tracks data about near misses and the number of observed 

trespassers, which it includes in quarterly reports. 

On the night at issue, Javad and his friends walked down the 

embankment at the end of 13th Street and crossed the train tracks to get to 

the ocean bluff, where they talked and smoked marijuana. Javad noticed a 

train coming and told his friends that he was going to use his phone to take a 

video “selfie” of himself next to the train. As Javad stood next to the train 

tracks to take a selfie, he was struck by the train and killed.

Hedayatzadeh filed this lawsuit against NCTD and two other parties.2

The lawsuit proceeded to trial against NCTD on the cause of action alleging 

1 For the sake of clarity we refer to Javad Hedayatzadeh by his first 

name, and we intend no disrespect by doing so. 

2 The other two defendants were the City of Del Mar and the entity that 

allegedly operated the train, BNSF Railway Company. Those parties both 

obtained dismissals prior to trial. In a previous opinion we affirmed the trial 
3

that NCTD created a dangerous condition of public property. (Gov. Code, 

§ 835.) 

At trial, Hedayatzadeh’s theory of liability was that NCTD’s right-ofway constituted a dangerous condition of public property because, among 

other things, NCTD did not install fencing to deter trespassers from walking 

near the railroad tracks, and NCTD did not warn trespassers about the width 

of the trains.

NCTD argued that the railroad right-of-way did not constitute a 

dangerous condition of public property because a person using reasonable 

care would know to avoid a moving train.3 NCTD did not dispute that the 

bluff area is dangerous and that trespassing is common. Indeed, the evidence 

at trial showed that NCTD had recently recommended the installation of 

fencing because of the danger posed to the frequent trespassers, but that 

proposal was opposed by multiple parties, including the City of Del Mar and 

the California Coastal Commission. 

The jury found that NCTD’s property was not in a dangerous condition 

at the time of Javad’s death, and the trial court entered judgment in favor of 

NCTD. Hedayatzadeh appeals from the judgment.

court’s order granting the motion for summary judgment brought by the City 

of Del Mar. (Hedayatzadeh v. City of Del Mar (2020) 44 Cal.App.5th 555.) 

3 The jury was instructed that “a ‘dangerous condition’ is a condition of 

public property that creates a substantial risk of injury to members of the 

general public when the property is used with reasonable care and in a 

reasonably foreseeable manner,” and that “[a] condition is not dangerous 

unless it creates a hazard to those who foreseeably will use the property with 

due care.” (See CACI No. 1102.) 
4

II.

DISCUSSION

Hedayatzadeh’s sole contention on appeal is that the trial court 

prejudicially erred when, during the closing argument of plaintiff’s counsel, 

the trial court sustained certain objections raised by counsel for NCTD. 

A. Applicable Legal Standards

“In conducting closing argument, attorneys for both sides have wide 

latitude to discuss the case. ‘ “ ‘ “The right of counsel to discuss the merits of 

a case, both as to the law and facts, is very wide, and he has the right to state 

fully his views as to what the evidence shows, and as to the conclusions to be 

fairly drawn therefrom. The adverse party cannot complain if the reasoning 

be faulty and the deductions illogical, as such matters are ultimately for the 

consideration of the jury.” ’ ” . . . “An attorney is permitted to argue all 

reasonable inferences from the evidence.” ’ ” (Cassim v. Allstate Ins. Co.

(2004) 33 Cal.4th 780, 795–796 (Cassim).) 

However, “ ‘counsel may not assume or state facts not in evidence 

[citation] or mischaracterize the evidence [citation].’ ” (People v. Collins

(2010) 49 Cal.4th 175, 209 (Collins).) Nor may counsel “ ‘invite the jury to 

speculate as to unsupported inferences.’ ” (Cassim, supra, 33 Cal.4th at 

p. 796.) “[T]rial courts have ‘broad discretion’ to limit both the duration and 

scope of closing arguments.’ ” (People v. Simon (2016) 1 Cal.5th 98, 147–148.) 

We apply an abuse of discretion standard when reviewing a trial court’s 

ruling sustaining an objection during closing argument. (People v. Edwards

(2013) 57 Cal.4th 658, 743 [concluding that “the trial court did not abuse its 

broad discretion” to sustain opposing counsel’s objection during closing 

argument].) 
5

If we find error in sustaining an objection during closing argument, the 

error will not require reversal unless the appellant establishes a reasonable 

probability of a more favorable result in the absence of the error. (People v. 

Harris (2013) 57 Cal.4th 804, 853 [citing People v. Watson (1956) 46 Cal.2d 

818, 836].) 

B. The Trial Court Did Not Abuse Its Discretion in Sustaining the

Objections

Hedayatzadeh contends that, at four different points during the closing 

argument of plaintiff’s counsel, the trial court erred in sustaining NCTD’s 

objections. We will, accordingly, break our analysis into four separate parts.

1. Statements Regarding NCTD’s Failure to Provide Statistical 

Evidence Relating to the Danger Posed to Trespassers

The first group of statements to which the trial court sustained 

objections concerned the dangerous nature of NCTD’s right-of-way along the 

Del Mar bluffs. Specifically, plaintiff’s counsel argued to the jury that it 

should conclude the area is dangerous because NCTD did not produce 

accurate information to the contrary, such as statistics showing only a low 

number of incidents involving pedestrians and trains in that area. In so 

doing, counsel repeatedly stated that NCTD had failed to provide relevant 

evidence. The trial court repeatedly sustained objections to those statements. 

“[PLAINTIFF’S COUNSEL]: . . . If a party provided weaker 

evidence when it could have provided stronger evidence, you may 

distrust the weaker evidence. That’s the law. Weaker evidence, 

let’s go through what they produced. NCTD is the party who has 

the ability to provide better evidence with regards to all this data

that they’ve had for decades. All that data, all that information. 

Don’t you think for a second if some of that data was ‘This area is 

actually not that dangerous,’ ‘We didn’t have notice of it,’ ‘We 

didn’t know about this,’ don’t you think they would put all of that 

on there and show you? They would be rushing people back and 

forth on that stand telling you, ‘We never knew about this. The 
6

data shows there’s only one or two.’ They’re the ones who have 

the opportunity and they didn’t produce it. 

“[DEFENDANT’S COUNSEL]: Your Honor, I object to that

that’s false. 

“THE COURT: The legal objection. 

“[DEFENDANT’S COUNSEL]: Mischaracterizes the evidence. 

“THE COURT: Sustained. 

“[PLAINTIFF’S COUNSEL]: As to data regarding near-misses 

on the bluffs, they didn’t bring any data about that. They’re the 

ones that have it. They’re the ones that have this information. 

“[DEFENDANT’S COUNSEL]: Object, your Honor. 

“THE COURT: Legal basis. 

“[DEFENDANT’S COUNSEL]: Mischaracterizes the evidence. 

“THE COURT: Sustained. 

“[PLAINTIFF’S COUNSEL]: Pedestrian strikes. Who has the 

ability to bring you that data? Who has it, between the two 

parties, who has the ability to show you, ‘Look, these are all the 

pedestrian strikes.’ They didn’t produce one person on there to 

say ‘These are the actual information. This is what we had, here 

it is. Here you go.’ That was not presented. 

“[DEFENDANT’S COUNSEL]: Your Honor, I object. 

“THE COURT: Your objection, the legal basis.

“[DEFENDANT’S COUNSEL]: Mischaracterizes the evidence. 

“THE COURT: Sustained. 

“[PLAINTIFF’S COUNSEL]: Same thing with fatalities.

[NCTD’s executive director] said, ‘We have one that I saw in 

2010,’ [NCTD’s chief of safety], said something like, ‘Oh, I think

there was two or three. We’re not sure.’ Actually, [NCTD’s chief 

of safety], if you recall just yesterday went back to his office, 
7

brought a sign just to show you what the sign looked like. He 

didn’t go back and look for data. 

“[DEFENDANT’S COUNSEL]: Your Honor, I object to this as

well. 

“[PLAINTIFF’S COUNSEL]: He could have shown that to you as 

well. 

“THE COURT: Legal basis. 

“[DEFENDANT’S COUNSEL]: Mischaracterizes the evidence. 

“THE COURT: Sustained. 

“[PLAINTIFF’S COUNSEL]: He has the power to bring it to you, 

ladies and gentlemen. We want to show you the evidence. We 

are here— 

“[DEFENDANT’S COUNSEL]: Your Honor, object. 

Mischaracterizes the evidence. 

“THE COURT: Sustained.”

Hedayatzadeh argues on appeal that because NCTD had “detailed 

working statistics” about “the number of pedestrians who had been struck by 

trains along and near the railroad tracks in the Bluffs area,” counsel’s 

“[c]omment in closing argument about the failure of NCTD to come forward 

with such evidence was reasonable and fair on the issue of notice of the 

danger accompanying the track configuration.” 

In deciding whether the trial court erred in sustaining the objections,

we must first attempt to ascertain the basis for NCTD’s objections that 

counsel’s statements “mischaracterize[d] the evidence.” Having reviewed the 

relevant portion of the reporter’s transcript, we infer NCTD concluded that 

plaintiff’s counsel was accusing NCTD of having withheld statistical 

evidence. NCTD apparently believed that such an accusation 

mischaracterized the evidence because nothing in the record suggested that 
8

NCTD had failed to comply with its discovery obligations or had failed to turn 

over statistical information. Indeed, according to our review of the record, 

not only was there no indication NCTD had withheld such data, plaintiff’s

counsel examined witnesses from NCTD at length about the content of 

reports and other filings created by NCTD that contain such data.4 

Based on our review of plaintiff’s counsel’s remarks, we conclude that a 

reasonable listener could interpret them as an accusation that NCTD had 

nefariously withheld evidence. Counsel may not have intended to accuse 

NCTD of nefariously withholding evidence, but he inadvertently ended up 

doing so. From our reading, it seems that counsel was trying to make the 

simple point that NCTD was unable to dispute that the statistics showed that 

there were a significant number of fatalities and near misses along the 

Del Mar bluffs. To emphasize that point, counsel argued that, if the facts 

were otherwise, NCTD would have highlighted such facts, but it was unable 

to do so. Unfortunately, in making that point, counsel veered off into a series 

of statements that a reasonable juror could understand as an accusation that 

NCTD had withheld evidence and that, due to NCTD’s misconduct, the jury 

had not been shown all the relevant data. 

Counsel stated, “They’re the ones who have the opportunity and they 

didn’t produce it”; “[T]hey didn’t bring any data about that. They’re the ones 

4 Witnesses from NCTD explained that NCTD reports data about 

trespasser fatalities to a federal agency and that statistics about near misses 

and trespassers appear in NCTD’s quarterly reports. At trial, NCTD’s 

executive director testified about statistics documenting incidents at the 

Del Mar bluffs that NCTD submitted to (1) support its application to obtain a 

grant for funds to allow the installation of fencing along the railroad tracks; 

and (2) argue for an order from the federal Surface Transportation Board 

that NCTD has the right to install fencing along the railroad tracks in 

Del Mar. 
9

that have it. They’re the ones that have this information”; “Who has the 

ability to bring you that data? Who has it, between the two parties, who has 

the ability to show you”; “He didn’t go back and look for data”; “He has the 

power to bring it to you, ladies and gentlemen. We want to show you the

evidence.” A juror listening to counsel’s closing argument could reasonably 

understand counsel to be asserting that NCTD willfully suppressed evidence 

or failed to turn over relevant evidence that Hedayatzadeh sought during 

discovery. 

“Accusing opposing counsel of willfully suppressing evidence without 

justification to do so is misconduct and may be ground for a new trial.” 

(Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter 

Group 2023), ¶ 13:127, p. 13-31 [citing Keena v. United Railroads of San 

Francisco (1925) 197 Cal. 148, 159–160].) Case law plainly disapproves of 

such conduct. (Kenworthy v. State (1965) 236 Cal.App.2d 378, 398 [counsel 

committed misconduct in argument by stating that the opposing party had 

suppressed evidence when “[t]here was no proof of this whatever”]; Smith v. 

Covell (1980) 100 Cal.App.3d 947, 956 [counsel committed misconduct during 

closing argument by commenting on the opposing parties’ failure to call 

witnesses, with “the implication that such [witnesses] would have testified 

adversely to plaintiffs’ case,” even though the witnesses “were equally 

available to subpoena by defendant had she chosen to call them”].) Further, 

any type of mischaracterization of the evidence during closing argument is 

improper. (Collins, supra, 49 Cal.4th at p. 209.) 

The proper response by the trial court to such misconduct is to sustain 

opposing counsel’s objections to such statements and instruct the jury to 

disregard them. (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 482 [when 

counsel improperly stated in closing argument that the defendant’s failure to 
10

call witnesses amounted to the suppression of unfavorable evidence, “if 

proper objection had been interposed the court would have been obliged to cut 

short plaintiff’s comments with reference to those prospective witnesses and 

to admonish the jurors to disregard what had been said”].) 

Here, because the trial court reasonably could have concluded that the 

jury might perceive that counsel was accusing NCTD of willfully suppressing 

evidence, although the record did not suggest that NCTD had done so, it was 

well within the trial court’s discretion to sustain NCTD’s objections that 

plaintiff’s counsel had mischaracterized the evidence. 

Further, even if Hedayatzadeh were able establish the trial court erred 

in sustaining the objections, he would not be able to show prejudicial error. 

When the trial court sustained the objections counsel was attempting to 

make the point that the statistical evidence showed a significant number of 

fatalities and near misses on the Del Mar bluffs and that NCTD had notice of 

that data. However, at trial, NCTD did not dispute the statistics showing 

such incidents. Indeed, it was in NCTD’s own reports where those incidents 

were documented. Further, during its own closing argument, NCTD plainly 

admitted that it was dangerous for trespassers to be on the Del Mar bluffs

and that trespassers had been hit by trains. NCTD did not dispute those 

facts as its defense focused on the argument that a person using reasonable

care would know not to stand near a moving train. Accordingly, it is not 

reasonably probable that Hedayatzadeh would have achieved a more 

favorable result if the trial court had overruled the objections. 

2. Statement Regarding NCTD’s Lack of Enforcement Against 

Trespassers

The next portion of plaintiff’s counsel’s closing argument concerns 

statements in which counsel argued there was no evidence at trial that 

NCTD had conducted the “proper enforcement” of the trespassing laws on the 
11

Del Mar bluffs that they “needed to do,” and that NCTD was not able to 

“justify that they’ve actually done it.”

Leading up to the relevant statements, plaintiff’s counsel first 

reminded the jury that certain witnesses had testified about using a threepart approach to prevent trespasser incidents on NCTD’s right-of-way, 

focusing on “education, enforcement, and engineering.” Then, referring to 

that three-part approach, counsel stated, “That was the testimony, that they 

needed to do that. If there was proper enforcement, there would be people up 

there, ‘We enforce it. There’s this many tickets every day. Look, look. Here’s 

the information. We’re enforcing it.’ ” Counsel for NCTD made an objection. 

The trial court sustained the objection and instructed the jury that it was to 

disregard “[t]he argument regarding the enforcement.” After a brief break for 

an unreported discussion between counsel and the trial court, plaintiff’s 

counsel immediately returned to the subject of NCTD’s lack of enforcement. 

Referring to NCTD’s witnesses, counsel argued, “When asked on the stand 

about enforcement, none of them produced a single information that would 

justify that they’ve actually done it.” The trial court sustained NCTD’s 

objection to that statement, and it directed the jury to “disregard the 

statement about the lack of evidence of enforcement.” 

The trial court’s ruling sustaining NCTD’s objections were made in the 

context of proceedings earlier in the day, during which the trial court ruled 

on a motion that NCTD brought prior to closing argument (NCTD’s preargument motion). Specifically, NCTD’s pre-argument motion asked the trial 

court to preclude plaintiff’s counsel from arguing that NCTD failed to 

adequately enforce the trespassing laws. NCTD based its motion on 

Government Code section 845, which states that a public entity is not “liable 

for failure to . . . provide police protection service or . . . provide sufficient 
12

police protection service.” NCTD further relied on case law it characterized 

as supporting a rule that the “presence or absence of police is not a physical 

characteristic [of] a property and thus cannot be considered in an action for 

dangerous condition of public property.” (Cerna v. City of Oakland (2008) 

161 Cal.App.4th 1340, 1352; Zelig v. County of Los Angeles (2002) 27 Cal.4th 

1112, 1135–1141; Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 

83 Cal.App.3d 492, 497–498; Wright v. Arcade School Dist. (1964) 

230 Cal.App.2d 272, 277–278; Avedon v. State of California (2010) 

186 Cal.App.4th 1336, 1343.) 

In ruling on NCTD’s pre-argument motion, the trial court explained 

that it would allow counsel to remind the jury of the evidence at trial 

regarding the recommended approach of “education, enforcement, and 

engineering” to provide railroad safety, but that it would not allow counsel to 

argue that the lack of enforcement was a factor giving rise to a dangerous 

condition. The trial court explained that case law holds lack of policing is not 

a relevant factor when determining a dangerous condition, and any such 

statement to the jury “would result in an objection and a sustaining of that 

objection.” Counsel stated that he was not planning to argue that lack of 

enforcement created a dangerous condition. 

At the same pre-argument hearing, the trial court also noted that

because of how Hedayatzadeh had pled his case, the issue to be decided at 

trial was whether there was a dangerous condition of public property, not 

whether NCTD had breached any particular duty.5 The trial court observed 

5 The trial court’s observation that duty was not at issue arose when it 

was ruling on a different pre-argument motion brought by NCTD, which 

raised the question of whether NCTD had a duty to warn about the width of 

trains. However, the trial court’s comment that duty was not a relevant issue 
13

that because NCTD’s duty was not a relevant issue, “any argument regarding

[duty] would be inappropriate in the context of how this case has been styled.

It’s whether there was a dangerous condition.” The trial court emphasized 

that if counsel argued that NCTD had a specific duty as a matter of law, the 

argument “would elicit an objection that would be sustained.” Plaintiff’s 

counsel indicated that he understood that NCTD’s duty was not at issue.

In light of this background, after sustaining NCTD’s objections to 

counsel’s argument about NCTD’s failure to enforce the trespassing 

prohibition, the trial court explained to counsel, at a break in the 

proceedings, why it had sustained the objections. The trial court specifically 

referred back to its discussion on the issue of duty. The trial court explained 

that the objections were sustained because counsel’s argument about the lack 

of enforcement “went to the issue of duty. [Counsel] didn’t say the word 

‘duty,’ but that was what was suggested and that’s why I sustained it.”

On appeal, Hedayatzadeh argues in a conclusory manner and without 

citation to authority that the trial court erred in sustaining the objections to 

counsel’s argument about NCTD’s failure to enforce the trespassing 

prohibition. In an extremely cursory discussion, without any citation to 

authority, Hedayatzadeh’s appellate briefing contends that “NCTD’s failure 

to diligently enforce trespassing citations went to the issue of its knowledge 

of the danger and its failure to ameliorate that danger,” and that such 

argument was, therefore, “clearly relevant.” In making this argument, 

Hedayatzadeh’s briefing does not acknowledge or discuss the trial court’s 

ruling on NCTD’s pre-argument motion, in which it limited the scope of 

at trial is a generally applicable observation. Hedayatzadeh has identified no 

reason that the trial court’s generally applicable observation would not also 

apply to a contention that NCTD had a duty to enforce the prohibition 

against trespassing. 
14

counsel’s argument about NCTD’s lack of enforcement.6 Nor does 

Hedayatzadeh grapple with the trial court’s explanation that it sustained the 

objections because NCTD’s duty was not a relevant issue at trial.

“In order to demonstrate error, an appellant must supply the reviewing 

court with some cogent argument supported by legal analysis and citation to 

the record. . . . [W]e may disregard conclusory arguments that are not 

supported by pertinent legal authority or fail to disclose the reasoning by 

which the appellant reached the conclusions [it] wants us to adopt.” (City of 

Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286–287.) Here, to the 

extent Hedayatzadeh intended, in his appellate briefing, to challenge the 

trial court’s ruling on NCTD’s pre-argument motion, or to contend that 

counsel’s argument about NCTD’s lack of proper enforcement did not 

improperly veer into a discussion about NCTD’s breach of duty, the argument 

is forfeited because it has not been adequately developed. (Ibid.) 

6 For the first time at oral argument, counsel for Hedayatzadeh 

acknowledged and discussed the trial court’s ruling on NCTD’s pre-argument 

motion, in which NCTD relied on Government Code section 845 to seek a 

ruling precluding Hedayatzadeh from arguing to the jury that NCTD failed to 

adequately enforce the trespassing laws. Hedayatzadeh’s counsel (who also 

represented Hedayatzadeh at trial) stated that he did not receive adequate 

notice of NCTD’s pre-argument motion before the trial court ruled on it, and 

that the motion should have been brought at the beginning of trial, although 

he also conceded that he did not request a continuance prior to the trial 

court’s ruling on the motion. Counsel further contended at oral argument 

that the trial court’s ruling was unclear and that he was surprised when the 

trial court sustained NCTD’s objections to his argument concerning NCTD’s 

failure to enforce the prohibition against trespassing. To the extent that 

Hedayatzadeh intended, at oral argument, to challenge the trial court’s 

ruling on NCTD’s pre-argument motion, the argument has been forfeited 

because it was not raised in Hedayatzadeh’s appellate briefing. (People v. 

Carrasco (2014) 59 Cal.4th 924, 990 [challenge raised for the first time at oral 

argument was forfeited because “ ‘[o]bvious reasons of fairness militate 

against consideration of an issue raised initially’ at oral argument”].) 
15

Because Hedayatzadeh has not meaningfully challenged the trial 

court’s rulings that (1) the existence of a dangerous condition of public 

property cannot be proven based on lack of enforcement; and (2) NCTD’s 

breach of duty was not a relevant issue, he has failed to carry his burden to 

establish that the trial court abused its discretion by sustaining the 

objections to counsel’s argument about NCTD’s lack of enforcement. In the 

particular statements at issue, counsel referred to the “proper enforcement” 

that NCTD “needed to do,” and he contended that NCTD had failed to 

“justify” its lack of enforcement. The trial court could reasonably understand 

those statements as an argument either that NCTD breached a duty by 

failing to enforce the prohibition against trespassing, or that NCTD created a 

dangerous condition by failing to do so. Whichever meaning counsel 

intended, the argument violated the trial court’s prior rulings, and the trial 

court was therefore within its discretion to sustain the objections.

3. Statement Regarding Lack of Warnings About Train Width

The third portion of closing argument at issue concerns a statement by 

plaintiff’s counsel that NCTD failed to warn trespassers that trains were 

wide enough to extend beyond the railroad ties. Referring to a witness’s 

testimony, counsel told the jury that the witness “[c]onfirmed that there is no 

signs or warning telling people that there’s portions of the train that sticks 

out. He confirms that.” Opposing counsel objected to the statement. The 

trial court sustained the objection and instructed the jury to “disregard about 

the trains sticking out past the railroad.”

We begin with a discussion of the relevant background on this issue. 

At trial, an accident reconstruction expert testified that Javad was struck by 

a handrail on the train’s locomotive, which extended 7.1 inches past the 

railroad ties. A different witness testified that during the relevant time 
16

period, the locomotive of NCTD’s Coaster train extended beyond the railroad 

ties, but that an image of the coach cars of the Coaster train showed that 

those cars did not extend beyond the ties. After the close of evidence, NCTD 

sought to reopen the testimony to recall a witness to testify that the coach 

cars of a train can, in fact, extend beyond the railroad ties. The trial court 

denied the request. Thus, the only evidence before the jury regarding the 

width of a train extending beyond the railroad ties related to the train’s 

locomotive. 

Prior to closing argument, NCTD sought a ruling to “exclude any 

argument relating to the width of the trains or locomotives.” The trial court 

declined to make such a ruling.

The statement at issue here was the first time during closing argument 

that plaintiff’s counsel mentioned the width of a train extending beyond the 

railroad ties. As we have explained, counsel referred to the lack of signage 

warning that “there’s portions of the train that sticks out.” Opposing counsel 

objected to the statement. The trial court sustained the objection and 

instructed the jury to “disregard about the trains sticking out past the 

railroad.”

What the trial court said next made clear that it sustained the 

objection because counsel had referred to the width of the train rather than 

the width of the locomotive. The trial court said, “The locomotive. . . . The 

locomotive, [plaintiff’s counsel].” Plaintiff’s counsel then proceeded with his 

argument about the witness confirming there were no warnings regarding

train width, but this time being careful to refer to the width of the locomotive. 

Counsel argued, “He confirmed there’s no signs telling them that the 

locomotive sticks out. No warning people that the locomotive—when I asked 

him, is there anything people that people will know that this locomotive has 
17

this seven, eight, whatever inches that sticks out? No, none of that. No 

evidence.” The trial court allowed the argument.

On appeal, Hedayatzadeh argues that the trial court erred in 

sustaining the objection to counsel’s initial statement that “there is no signs 

or warning telling people that there’s portions of the train that sticks out.” In 

a very cursory argument, he contends that the trial court erred because “the 

adequacy of such signage, including its placement and content, was in issue.” 

The argument fails because it does not acknowledge the basis for the 

trial court’s ruling sustaining the objection. During closing argument,

“ ‘counsel may not . . . mischaracterize the evidence.’ ” (Collins, supra, 

49 Cal.4th at p. 209.) Here, because the evidence at trial established that 

portions of the locomotive extended beyond the railroad ties, but there was no 

evidence that the rail cars extended beyond the ties, the trial court was 

within its discretion to conclude that counsel mischaracterized the evidence 

because he referred generally to the width of the “train” rather than referring 

specifically to the locomotive. 

Moreover, even if Hedayatzadeh had established error, he would not be 

able to establish prejudice. Although the trial court sustained the objection 

and instructed the jury to disregard the statement “about the trains sticking 

out past the railroad,” the trial court next allowed counsel to make the same 

statement again, but this time with the more accurate reference to the 

locomotive. Because the jury was ultimately presented with the argument 

that counsel intended to deliver, it is not reasonably probable that 

Hedayatzadeh would have achieved a more favorable result if the trial court 

had not sustained the objection to his initial statement. 
18

4. Statements Regarding NCTD’s Expert Witness

The final statement concerns an argument by plaintiff’s counsel 

contending that an expert witness called by NCTD was biased, based on the 

parties for whom he had worked.

Plaintiff’s counsel argued that the witness “[b]elieves railroad 

companies are victims. He told you that. He’s like, ‘That’s what I feel.’ He’s

supposed to be a neutral evaluator of the facts, and he has that feeling that 

railroad companies are victims. He’s worked for them for 36 years, and by 

the way, his entire consultant career, he’s only worked for that law firm, 

defense law firm. Nobody else. Five or six times. He has only worked for 

defense law firm the entire career as a consultant.” Opposing counsel 

objected that the statement mischaracterized the evidence. The trial court 

sustained the objection. 

Hedayatzadeh argues the trial court erred because “the bias of expert 

witnesses is potentially always in issue,” but he does not specifically address 

whether, in fact, the trial court properly concluded that plaintiff’s counsel had 

mischaracterized the evidence.

The trial court was within it discretion to conclude that plaintiff’s 

counsel mischaracterized the evidence. (Collins, supra, 49 Cal.4th at p. 209

[counsel may not mischaracterize evidence during closing argument].) At 

trial, the expert testified that he had handled “five or six” cases as a 

consultant, including one previous case for the same law firm representing 

NCTD in Hedayatzadeh’s trial, i.e., Lewis Brisbois, Bisgaard & Smith, LLP

(Lewis Brisbois). On cross-examination, plaintiff’s counsel asked the expert, 

“At least at the time of your deposition, last year, no other law firm besides 

Lewis Brisbois had hired you as an expert, correct?” The expert answered, 

“That’s correct.” 
19

The expert’s testimony does not support the statement by plaintiff’s 

counsel that, as a consultant, the expert had only worked “for that law firm, 

defense law firm. Nobody else. Five or six times.” It is true that as of the 

expert’s deposition the prior year, he had only worked for Lewis Brisbois, but 

that fact was apparently no longer true as of the time of trial. 

DISPOSITION

The judgment is affirmed. NCTD is awarded its costs on appeal. 

IRION, Acting P. J.

WE CONCUR:

DATO, J.

KELETY, J.