Metropolitan News-Enterprise


Friday, August 8, 2008


Page 3


Defendant’s Illicit Personal Conduct Irrelevant to Personal Injury Claim—C.A.




The Court of Appeal for this district yesterday overturned a defense verdict in an auto accident case, saying the trial judge prejudicially erred by admitting evidence that the plaintiff had extramarital affairs and was married to two women at the same time.

“We conclude that evidence of plaintiff’s illicit, intimate conduct was not relevant; to the extent the evidence was relevant, it should have been excluded as unduly prejudicial in response to plaintiff’s motion under Evidence Code section 352; and its admission caused a miscarriage of justice,” Presiding Justice Robert Mallano wrote for Div. One.

 “The disputed evidence was so inflammatory,” Mallano added, “it appears reasonably probable that had it been excluded, plaintiff could have obtained a verdict in his favor.” The court reversed the judgment and ordered a new trial for the plaintiff, identified only as Winfred D.

Prior to his 2004 accident, the plaintiff, a native of the Philippines with a mechanical engineering degree, operated a business for about 20 years delivering Asian vegetables purchased in Los Angeles markets to stores in Las Vegas. The accident occurred when the right rear tire on his rented cargo van delaminated, causing a rollover that resulted in sever brain injury.

He sued the designer and manufacturer of the tire, both part of the Michelin group of tire companies, claiming strict liability and breach of warranty. Michelin responded that the accident was a result of overloading the van.

In his opening argument, plaintiff’s attorney David Lira of Girardi & Keese told jurors that his client “was living the American Dream, attempting to try his hand at different businesses” when he realized that there was an opportunity for “the one person who will gladly travel to Las Vegas weekly to deliver this produce” and that this was the reason he rented the van.

Through evidence and argument, Michelin attorney James Yukevich of Yukevich Calfo & Cavanaugh informed jurors that the plaintiff had married his first wife in 1970, that he had married for the second time in 1984 without divorcing the first wife; that he had begun seeing the woman who was to become his second wife while she was married to his partner in another business, that he had persuaded her to marry him by showing her a fraudulent Mexican divorce decree, and that after his divorce from his second wife, he began an affair with a Las Vegas woman with whom he had two children.

At the time of trial, he had two children from his first marriage, both adults, and two children in Las Vegas, around eight and 10 years of age.

Los Angeles Superior Court Judge David Workman, now retired, allowed the evidence of the plaintiff’s personal life to come in, over repeated defense objection.

He held that Lira, by mentioning “the American Dream,” had opened the door to evidence of the plaintiff’s character, and that the evidence was relevant to whether the plaintiff was credible in denying that he had overloaded the van and as to whether the existence of a second family constituted an additional motivation to visit Las Vegas and created a financial incentive for him to maximize the amount of produce in the vehicle beyond that which was safe to carry and legally allowed.

 The plaintiff and his eldest child, who helped him in the business, both testified that the van was never loaded with more than the legally allowed 2,000 pounds of cargo; to do otherwise would have subjected them to a fine, made it difficult to drive the van, and opened them to the possibility of spoilage, they said.

Michelin experts testified that the amount of pressure on the tire indicated that the van was likely filled to the top, placing the total weight of the cargo at more than 3,000 pounds.

Jurors found unanimously that there was no manufacturing defect, found by a vote of 11-1 that there was no design defect, and found by a vote of 9-3 that the plaintiff used or misused the van in a manner not foreseeable to the defendants, thus precluding liability for breach of warranty.

Mallano, however, concluded that the trial judge abused his discretion by admitting the evidence of Winfred D.’s personal affairs, which the presiding justice said should have been excluded as irrelevant or as more prejudicial than probative under Evidence Code Sec. 352.

As for the argument that Lira’s “American Dream” comments opened the door to such evidence, Mallano questioned whether it is possible to open the door to otherwise inadmissible evidence in an opening statement. While some federal courts say it is, the justice pointed out, a number of appellate courts in other states have held otherwise, as did the one California case to address the issue.

In any event, Mallano said, “[w]e fail to see how the use of this term...was inappropriate or played on the jury’s emotions” as the trial judge had suggested. “Counsel simply told the jury what Winfred had done in attempting to achieve material prosperity. From any objective perspective, Winfred was pursuing the American Dream: He was a successful small business owner for 20 years.”

The jurist also rejected Workman’s suggestion that the plaintiff’s conduct could be “explained” by counsel, dispelling any undue prejudice.

“But how could a party “explain” an extramarital affair in a way that rehabilitates his or her credibility? Once the evidence is ‘out,’ the harm is done and irreparable. To bring up the subject again — in an attempt to somehow ‘explain’ it — a party would simply remind the jury of the illicit behavior and probably do more harm than good.”

Mallano went on to reject what he called “Michelin’s most tenuous contention”—that his extramarital relationship with the Las Vegas woman and the fact they had children provided a motive for overloading the van.

The presiding justice distinguished cases holding that evidence of a defendant’s financial condition may be admitted to show that he had a motive to steal or to cheat on his taxes.

There was, Mallano explained, virtually no evidence regarding the plaintiff’s finances, nor those of his wife, adult children, or mistress, so there was “no proof that Winfred supported one family, much less two, and, if so, in what amounts.”

The jurist also cited cases holding that a showing of financial need is not, in and of itself, evidence of a motive to commit a crime.

Lira was assisted on appeal by Shahram A. Shayesteh and David N. Bigelow of Girardi and Keese and by Laurence H. Mandell and Robert J. Mandell of The Mandell Law Firm. Yukevich was assisted by Thomas Borncamp and Emily Hicks of his firm.

Mallano’s opinion was joined by Justice Frances Rothschild and retired Los Angeles Superior Court Judge Richard Neidorf, sitting on assignment.

The case is Winfred D. v. Michelin North America, Inc., 08 S.O.S. 4797.


Copyright 2008, Metropolitan News Company