Evidentiary Errors And Attorney Misconduct During Trial Result In Reversal Of $1.2 Million Verdict.

During a test drive of a brand new BMW, the prospective purchaser, the defendant here, crashed and totaled the car and injured the salesman, the plaintiff. A jury awarded plaintiff $1.2 million. Citing evidentiary errors and attorney misconduct, the defendant appealed.  The appellate court reversed. One of the evidentiary errors found was that the trial court permitted plaintiff’s lawyer to call defendant as an adverse witness and cross-examine him about his negative responses to requests for admissions and admitted into evidence the written requests and denials. The appellate court stated: “We are persuaded, therefore, that denials of RFA’s are not admissible evidence in an ordinary case, i.e., a case where a party’s litigation conduct is not directly in issue. Thus, the trial court permitted  examination of [defendant] that was unfair and prejudicial to him, and erred in admitting those responses in evidence.” Another evidentiary error occurred when the trial court allowed plaintiff’s lawyer to question defendant about whether his driving was a substantial factor in causing the accident, and the appellate court found it was error to permit questioning about the ultimate legal issue in the case. Yet another evidentiary error occurred when the trial court permitted cross-examination of defendant about his speeding tickets; the appellate court stated: “Because the evidence had little, if any, relevance to the purpose for which it was ostensibly admitted, and was completely inadmissible as propensity evidence to establish liability, it was unduly prejudicial and should have been excluded under Evidence Code section 352.” The appellate court also held the plaintiff’s lawyer made inappropriate and prejudicial comments about defendant’s Chinese heritage by remarking in opening statement that defendant was born in China and came to California only for visits. The appellate court also found attorney misconduct in plaintiff’s lawyer’s asking the jury to send an appropriate message to the community with its verdict, a comment which might apply in a punitive damages situation, but not when there is only ordinary negligence involved. (Gonsalves v. Li (Cal. App. First Dist., Div. 1; January 13, 2015) 232 Cal.App.4th 1406, [182 Cal.Rptr.3d 383].)