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B. MARK FONG, ESQ. (SBN 99672)
mfong@minamitamaki.com
SEEMA BHATT, ESQ. (SBN 275278)
sbhatt@minamitamaki.com
EMBER J. OPAROWSKI, ESQ. (State Bar #290086)
eoparowski@minamitamaki.com
MINAMI TAMAKI LLP
360 Post Street, 8th Floor
San Francisco, Ca 94108-4903
Tel: (415) 788-9000
Fax: (415) 398-3887
MICHAEL A. KELLY (State Bar #71460)
mkelly@walkuplawoffice.com
DORIS CHENG (State Bar #197731)
dcheng@walkuplawoffice.com
ANDREW P. McDEVITT (State Bar #271371)
amcdevitt@walkuplawoffice.com
TINA M. GLEZAKOS (State Bar #229928)
tglezakos@walkuplawoffice.com
WALKUP, MELODIA, KELLY & SCHOENBERGER
650 California Street, 26th Floor
San Francisco, Ca 94108
Tel: (415) 981-7210
Fax: (415)391-6965
ATTORNEYS FOR PLAINTIFFS
SZ HUA HUANG, INDIVIDUALLY AND AS
SUCCESSOR IN INTEREST TO WEI LUN HUANG,
DECEASED; TRINITY HUANG, A MINOR;
TRISTAN HUANG, A MINOR
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
SZ HUA HUANG, Individually and as Case No. 19CV346663
successor in interest to WEI LUN HUANG,
deceased; TRINITY HUANG, a minor; PLAINTIFFS’ MOTION TO CURE THE
TRISTAN HUANG, a minor; HSI DEFECT CAUSED BY CALTRANS’
KENGHUANG; and CHING FEN HUANG, IMPROPER ARGUMENT ABOUT THE
LAW
Plaintiffs,
Action Filed: April 26, 2019
Trial Date: March 18, 2024
THE STATE OF CALIFORNIA, Trial Judge: Hon. Lori Pegg
Department:5
Defendants.
PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE
LAW CASE NO. 19CV346663
INTRODUCTION
Ignoring the Court’s ruling about the jury instruction and Special Verdict Form, Defendant
Caltrans misstated the law on dangerous condition during closing argument with the result of the
confusion to the jurors in deliberation. Plaintiffs raised the objection and requested admonishment
while Defendant was still making its final argument. The Court’s ruling that Plaintiffs waived the
objection by not interrupting Defendant’s closing argument and waiting for an opportune time
while Defendant was not even halfway through closing, is wrong.
The jury is now in its third day of deliberations. On the jurors’ second day of deliberations,
the jurors asked questions about CACI 1102. The Court discussed the response with counsel and
acknowledged that the jurors are seeking guidance about the instruction. Plaintiffs asserted that the
confusion is caused by Defendants’ improper argument about the law, which is now manifest in
the jury questions.
Plaintiffs request that the Court cure the defect and prejudice created by Defendants’
improper argument on a critical issue in the trial.
BACKGROUND
Before closing arguments, the Court ruled on the jury instructions and Special Verdict
Form. Defendant requested the following special instruction: “In evaluating the reasonable
foreseeability of “the kind of injury that occurred,” you must consider the precise manner in which
the injury occurred.” The Court ruled that Caltrans’ proposed instruction was misleading. (Trial
Tr. at 4038:16-18.)
Similarly, the Court rejected Caltrans’ proposed language to Question number 2 of the
Special Verdict Form: “Did the dangerous condition create a reasonably foreseeable risk that this
kind of incident would occur?” and ruled that the question remain consistent with the jury
instruction and CACI VF-1100, which reads: “ the property a dangerous condition the
of the injury
Even though Caltrans was properly admonished before closing argument that it is not a
correct statement of the law to argue that reasonable foreseeability is related to the precise manner
in which the injury occurred, that is exactly what Caltrans argued to the jury:
LAW OFFICES OF
ALKUP ELODIA ELLY
SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE
SAN FRANCISCO, CA 94108
(415) 981
LAW CASE NO. 19CV346663
Then we turn to foreseeability.· And I apologize. Some of those colors make it
difficult to read the fonts, bu so foreseeability has to do with the manner in
which the accident happened, and was it reasonably foreseeable.
So Plaintiffs claim that the accident was foreseeable because other vehicles hit the
attenuator, and the one that hit a damaged attenuator died.· So they're saying it's
foreseeable that someone would hit a damaged attenuator and die.
So but what evidence do we have that it is not reasonably foreseeable? So Dr.
Ayres again talked about the guide signs and striping to help the motorist. And it's
foreseeable that vehicles' drivers can lose control.· Okay.· That's what's commonly
called an errant vehicle.· And you maybe were making a last-minute lane change.·
You just weren't paying attention and tried to move over, and then you lost control,
and then you might hit the attenuator.· That's foreseeable.
Or a person maybe they had a few too many drinks and thought they could drive
home, but they were impaired and couldn't control their vehicle.· Yeah.· Okay.
So that's pretty much foreseeable.
But it's not foreseeable that a partially automated vehicle purposely steers
itself into a gore area, speeds up, and then hits a fixed object, and all of this
happening while the driver is distracted, not paying attention, not driving, not
controlling their vehicle, not not braking, not accelerating, not doing
anything, just not driving.
So the manner in which this accident happened wasn't reasonably
foreseeable.· And if you find the answer is "no," then again, Plaintiffs' case
fails.· They have to meet their burden on every single element.· Okay.· If one
element falls, the case is over.
So it all falls on you, because you all are reasonable people.· Right.· And you
can decide if in 2018 it was reasonably foreseeable that this kind of accident
would happen.·
(Trial Tr, at 4132:10- 4133:20)
This portion of Defendant’s closing argument took place very near 5:00 p.m., as the parties
were breaking for the day. Plaintiffs did not interrupt Defendant’s closing argument, and instead,
raised the objection and request for admonishment before Defendant resumed its closing argument
the next morning.
Yesterday during defense counsel's argument, she both misstated the law and
misstated the verdict form on the issue of foreseeability.I am l oath to object to
another lawyer's final argument, and I bit my lip while what I'm about to read was
said.
I think counsel first needs to be admonished.But more importantly, since we're
now moving to the so-called what-if section, I think counsel also needs to be
reminded that pursuant to the motions in limine and the Court's consistent rulings,
the State of California and Caltrans cannot argue that Walter would have died if the
attenuator was functional.
·····
LAW OFFICES OF
ALKUP ELODIA ELLY
SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE
SAN FRANCISCO, CA 94108
(415) 981
LAW CASE NO. 19CV346663
Let me first, however, talk about thisissue of how counsel purposely misstated the
test of foreseeability which these jurors are to apply.
In this case, Caltrans has, almost from the outset, tried to convince the Court to
change the law and require that the jurors find that this particular accident
was of the type that had to be specifically foreseeable.Here is counsel's argument
yesterday, contrary to the instructions and contrary to the law.Beginning at
transcript page 4132, line 23, and continuing to 4133, line 16….
That argument was legally improper. It misstated the law.We know that the
verdict form and the instructions ask whether the dangerous condition created a
reasonably foreseeable risk that this kind of injury would occur. And phrasing it
and portraying it in this manner was not an accident. It was well thought out.It is
purposely confusing, and it purposely misstated the law.
And frankly, I'm not sure what the cure is. I did not object at the time because I
was trying to be civil and professional.But ev eryone who listened knew that it was
improper, and I think counsel should be admonished.
Second, I frankly given this, given the earlier slip in voir dire that Tesla settled,
given Mr. Cook's spilling out of the video game, given Mr. Fenton's spilling out of
the NTSB, I'm anxious that counsel is again now going to violate another MIL or
rule of law and begin to argue that there is some evidence in the case that if there
was a functional attenuator, the jurors can decide it would not have made any
difference.
And we've been here for five weeks.And I simply want the Court to be attentive to
what's been happening here. And I'd like some guidance on what's the fix for
having had the test of foreseeability misstated and the verdict form and instructions
isstated.
Trial Tr. at 4158:8 4160:26.
The Court stated that Plaintiffs waived the objection. The Court further declined to give
any admonishment, but stated: “So again, I'm not going to do anything.I'm going to require the
parties to make sure when you argue, you're arguing the jury instructions I allowed.” (Trial Tr. at
4163:22 24.) But the Court’s rulings have no teeth, as demonstrated by the multiple occasions
wherein Caltrans violated the motions in limineorders without any repercussion.
After oral argument on Plaintiffs’ objection, Caltrans continued with its closing argument
for approximately 1.5 hours. The Court’s repeated statement that this trial must be “fair” can only
be true if the Court’s prior in liminerulings are enforced.
CALTRANS SHOULD NOT BE PERMITTED TO MISLEAD THE JURY ABOUT
THE LAW OF THE CASE
Caltrans’ misstatement of the law in exactly the manner in which the Court ruled was
LAW OFFICES OF
ALKUP ELODIA ELLY
SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE
SAN FRANCISCO, CA 94108
(415) 981
LAW CASE NO. 19CV346663
misleading is a serious matter and requires a cure. California cases have examined the issue of
attorney misconduct in the context of whether an admonition would have cured the harm:
the initial question to be decided in all cases in which a defendant complains of
prosecutorial misconduct for the first time on appeal is whether a timely objection
and admonition would have cured the harm. If it would, the contention must be
rejected (citation); if it would not, the court must then and only then reach the issue
whether on the whole record the harm resulted in a miscarriage of justice within the
meaning of the Constitution.” [citation omitted] Those precepts perforce are
applicable to a civil case.”
Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 798 (disapproved of on other grounds
Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21.
Grimshaw, supra, 119 Cal.App.3d at 798, Defendant Ford did not raise any objection
until after all closing arguments were completed which is the opposite of what occurred in the
instant case. Here, the jury is still deliberatingand asking specific quest ions about CACI 1102.
he Court has the opportunity to cure the defect and prejudice
While discussing an appropriate response to the jurors’ questions about CACI 1102 on
May 24, 2024 (day two of deliberations), Plaintiffs had asked the Court to read from the Sources
and Authority for CACI 1102and specifically to the tationfrom the California Supreme Court
decision in Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105:
TheAct defines “[d]angerous condition” condition propertythat
creates substantial (as distinguishedfrom minor,trivial insignificant) risk
injurywhen such property adjacent property usedwith care manner
which reasonably foreseeablethat will used.’ Public property
dangerousconditionwithin the meaning section ‘is physicallydamaged,
deteriorated, defective such way foreseeably endanger those usingthe
propertyitself.’
Plaintiffs also proposed the following instruction which has been given in other dangerous
condition cases against a public entity:
Foreseeability is not to be measured by what is more probable than not, but
includes whatever is likely enough in the setting of modern life that a reasonably
thoughtful [person] would take account of it in guiding practical conduct. One may
be held accountable for creating the risk of a slight possibility of injury if a
reasonably prudent [person] would not do so.
What is required to be foreseeable is the general character of the event or harm not
its precise nature or manner of occurrence.
Bigbee v. Pacific Tel. & Tel.Co.(1983) 34 Cal.3d 49, 57.
Plaintiffs request that the Court give either admonishment while the jury is still
LAW OFFICES OF
ALKUP ELODIA ELLY
SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE
SAN FRANCISCO, CA 94108
(415) 981
LAW CASE NO. 19CV346663
deliberating.
IV. PLAINTIFFS TIMELY MADE THEIR OBJECTION DURING CLOSING
ARGUMENTS WHILE THE COURT STILL HAD THE OPPORTUNITY TO
CURE THE DEFECT AND PREJUDICE
In Cassim v. State Farm Insurance (2004) 33 Cal.4th 780, the Supreme Court held:
“Generally, to preserve for appeal an instance of misconduct of counsel in the
presence of the jury, an objection must have been lodged at trial." (Miller v. Elite
Ins. Co. (1980) 100 Cal.App.3d 739, 761 [161 Cal.Rptr. 322].) In addition to
objecting, a litigant faced with opposing counsel's misconduct must also "move for
a mistrial or seek a curative admonition" (Neumann v. Bishop (1976) 59
Cal.App.3d 451, 468 [ 130 Cal.Rptr. 786]) unless the misconduct is so persistent
that an admonition would be inadequate to cure the resulting prejudice (id. at p.
469). This is so because "[o]ne of the primary purposes of admonition at the
beginning of an improper course of argument is to avoid repetition of the remarks
and thus obviate the necessity of a new trial." (Sabella v. Southern Pac. Co. (1969)
70 Cal.2d 311, 320 [ 74 Cal.Rptr. 534, 449 P.2d 750].)
Here, Plaintiff’s objection was not waived as the objection was made before the defense
argument was concluded and at a point when the court could have and should have admonished
the jury and defense counsel that the argument describing the test for foreseeability constituted a
statement of the law. Indeed, the argument was entirely improper. Plaintiffs did not stand by and
do nothing – the appropriate objection was made before defense counsels argument was concluded
and in plenty of time for the court to take remedial action. And as required, Plaintiffs’ counsel
specifically requested curative action by the court.
CONCLUSION
For all of these reasons, the Court should consider the appropriate cure to assure that
Plaintiffs receive a fair trial.
Dated: May ALKUP ELODIA ELLY CHOENBERGER
By:
MICHAEL A. KELLY
DORIS CHENG
ANDREW P. McDEVITT
Attorneys for PLAINTIFFS
LAW OFFICES OF
ALKUP ELODIA ELLY
SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE
SAN FRANCISCO, CA 94108
(415) 981
LAW CASE NO. 19CV346663
PROOF OF SERVICE
Huang v. Tesla, Inc., et. al.
Case No. 19CV346663
At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the county where the mailing took place, My business address is 650 California
Street, 26th Floor, City and County of San Francisco, CA 94108-2615.
On the date set forth below, I caused to be served true copies of the following document(s)
described as
PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER
ARGUMENT ABOUT THE LAW
to:
Jeanne Scherer, Acting Chief Counsel Attorneys For Defendant
G. Michael Harrington, Deputy Chief STATE OF CALIFORNIA
Counsel Phone: 510-433-9100
anda Low, Deputy Attorney Fax: 510-433-9167
Rosemary Love, Deputy Attorney Email: landa.low@dot.ca.gov
Philip DiBoise, Deputy Attorney rosemary.love@dot.ca.gov
Caltrans Legal Division Philip.DiBoise@dot.ca.gov
Physical Address: maria.cordonero@dot.ca.gov
111 Grand Ave., Suite 11-100 genoveva.mercado@dot.ca.gov
Oakland, CA 94612
Mailing:
PO Box 24325
Oakland, CA 94623 1325
B. Mark Fong Counsel for Plaintiffs
Seema Bhatt Phone: (415) 788-9000
Ember J. Oparowski Fax: (415) 398-3887
Minami Tamaki LLP MFong@MinamiTamaki.com
101 Montgomery Street, Suite 825 SBhatt@MinamiTamaki.com
San Francisco, CA 94104 eoparowski@minamitamaki.com
ESullivan@minamitamaki.com
EEverett@MinamiTamaki.com
BY ELECTRONIC TRANSMISSION: Pursuant to CCP 1010.6(e), I caused the above-
titled document(s) to be electronically served on the persons at the electronic service addresses
listed.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on May 28, 2024, at San Francisco, California.
Karina Lara
LAW OFFICES OF
ALKUP ELODIA ELLY
SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE
SAN FRANCISCO, CA 94108
(415) 981
LAW CASE NO. 19CV346663
Preview
B. MARK FONG, ESQ. (SBN 99672) mfong@minamitamaki.com SEEMA BHATT, ESQ. (SBN 275278) sbhatt@minamitamaki.com EMBER J. OPAROWSKI, ESQ. (State Bar #290086) eoparowski@minamitamaki.com MINAMI TAMAKI LLP 360 Post Street, 8th Floor San Francisco, Ca 94108-4903 Tel: (415) 788-9000 Fax: (415) 398-3887 MICHAEL A. KELLY (State Bar #71460) mkelly@walkuplawoffice.com DORIS CHENG (State Bar #197731) dcheng@walkuplawoffice.com ANDREW P. McDEVITT (State Bar #271371) amcdevitt@walkuplawoffice.com TINA M. GLEZAKOS (State Bar #229928) tglezakos@walkuplawoffice.com WALKUP, MELODIA, KELLY & SCHOENBERGER 650 California Street, 26th Floor San Francisco, Ca 94108 Tel: (415) 981-7210 Fax: (415)391-6965 ATTORNEYS FOR PLAINTIFFS SZ HUA HUANG, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO WEI LUN HUANG, DECEASED; TRINITY HUANG, A MINOR; TRISTAN HUANG, A MINOR SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA SZ HUA HUANG, Individually and as Case No. 19CV346663 successor in interest to WEI LUN HUANG, deceased; TRINITY HUANG, a minor; PLAINTIFFS’ MOTION TO CURE THE TRISTAN HUANG, a minor; HSI DEFECT CAUSED BY CALTRANS’ KENGHUANG; and CHING FEN HUANG, IMPROPER ARGUMENT ABOUT THE LAW Plaintiffs, Action Filed: April 26, 2019 Trial Date: March 18, 2024 THE STATE OF CALIFORNIA, Trial Judge: Hon. Lori Pegg Department:5 Defendants. PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE LAW CASE NO. 19CV346663 INTRODUCTION Ignoring the Court’s ruling about the jury instruction and Special Verdict Form, Defendant Caltrans misstated the law on dangerous condition during closing argument with the result of the confusion to the jurors in deliberation. Plaintiffs raised the objection and requested admonishment while Defendant was still making its final argument. The Court’s ruling that Plaintiffs waived the objection by not interrupting Defendant’s closing argument and waiting for an opportune time while Defendant was not even halfway through closing, is wrong. The jury is now in its third day of deliberations. On the jurors’ second day of deliberations, the jurors asked questions about CACI 1102. The Court discussed the response with counsel and acknowledged that the jurors are seeking guidance about the instruction. Plaintiffs asserted that the confusion is caused by Defendants’ improper argument about the law, which is now manifest in the jury questions. Plaintiffs request that the Court cure the defect and prejudice created by Defendants’ improper argument on a critical issue in the trial. BACKGROUND Before closing arguments, the Court ruled on the jury instructions and Special Verdict Form. Defendant requested the following special instruction: “In evaluating the reasonable foreseeability of “the kind of injury that occurred,” you must consider the precise manner in which the injury occurred.” The Court ruled that Caltrans’ proposed instruction was misleading. (Trial Tr. at 4038:16-18.) Similarly, the Court rejected Caltrans’ proposed language to Question number 2 of the Special Verdict Form: “Did the dangerous condition create a reasonably foreseeable risk that this kind of incident would occur?” and ruled that the question remain consistent with the jury instruction and CACI VF-1100, which reads: “ the property a dangerous condition the of the injury Even though Caltrans was properly admonished before closing argument that it is not a correct statement of the law to argue that reasonable foreseeability is related to the precise manner in which the injury occurred, that is exactly what Caltrans argued to the jury: LAW OFFICES OF ALKUP ELODIA ELLY SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE SAN FRANCISCO, CA 94108 (415) 981 LAW CASE NO. 19CV346663 Then we turn to foreseeability.· And I apologize. Some of those colors make it difficult to read the fonts, bu so foreseeability has to do with the manner in which the accident happened, and was it reasonably foreseeable. So Plaintiffs claim that the accident was foreseeable because other vehicles hit the attenuator, and the one that hit a damaged attenuator died.· So they're saying it's foreseeable that someone would hit a damaged attenuator and die. So but what evidence do we have that it is not reasonably foreseeable? So Dr. Ayres again talked about the guide signs and striping to help the motorist. And it's foreseeable that vehicles' drivers can lose control.· Okay.· That's what's commonly called an errant vehicle.· And you maybe were making a last-minute lane change.· You just weren't paying attention and tried to move over, and then you lost control, and then you might hit the attenuator.· That's foreseeable. Or a person maybe they had a few too many drinks and thought they could drive home, but they were impaired and couldn't control their vehicle.· Yeah.· Okay. So that's pretty much foreseeable. But it's not foreseeable that a partially automated vehicle purposely steers itself into a gore area, speeds up, and then hits a fixed object, and all of this happening while the driver is distracted, not paying attention, not driving, not controlling their vehicle, not not braking, not accelerating, not doing anything, just not driving. So the manner in which this accident happened wasn't reasonably foreseeable.· And if you find the answer is "no," then again, Plaintiffs' case fails.· They have to meet their burden on every single element.· Okay.· If one element falls, the case is over. So it all falls on you, because you all are reasonable people.· Right.· And you can decide if in 2018 it was reasonably foreseeable that this kind of accident would happen.· (Trial Tr, at 4132:10- 4133:20) This portion of Defendant’s closing argument took place very near 5:00 p.m., as the parties were breaking for the day. Plaintiffs did not interrupt Defendant’s closing argument, and instead, raised the objection and request for admonishment before Defendant resumed its closing argument the next morning. Yesterday during defense counsel's argument, she both misstated the law and misstated the verdict form on the issue of foreseeability.I am l oath to object to another lawyer's final argument, and I bit my lip while what I'm about to read was said. I think counsel first needs to be admonished.But more importantly, since we're now moving to the so-called what-if section, I think counsel also needs to be reminded that pursuant to the motions in limine and the Court's consistent rulings, the State of California and Caltrans cannot argue that Walter would have died if the attenuator was functional. ····· LAW OFFICES OF ALKUP ELODIA ELLY SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE SAN FRANCISCO, CA 94108 (415) 981 LAW CASE NO. 19CV346663 Let me first, however, talk about thisissue of how counsel purposely misstated the test of foreseeability which these jurors are to apply. In this case, Caltrans has, almost from the outset, tried to convince the Court to change the law and require that the jurors find that this particular accident was of the type that had to be specifically foreseeable.Here is counsel's argument yesterday, contrary to the instructions and contrary to the law.Beginning at transcript page 4132, line 23, and continuing to 4133, line 16…. That argument was legally improper. It misstated the law.We know that the verdict form and the instructions ask whether the dangerous condition created a reasonably foreseeable risk that this kind of injury would occur. And phrasing it and portraying it in this manner was not an accident. It was well thought out.It is purposely confusing, and it purposely misstated the law. And frankly, I'm not sure what the cure is. I did not object at the time because I was trying to be civil and professional.But ev eryone who listened knew that it was improper, and I think counsel should be admonished. Second, I frankly given this, given the earlier slip in voir dire that Tesla settled, given Mr. Cook's spilling out of the video game, given Mr. Fenton's spilling out of the NTSB, I'm anxious that counsel is again now going to violate another MIL or rule of law and begin to argue that there is some evidence in the case that if there was a functional attenuator, the jurors can decide it would not have made any difference. And we've been here for five weeks.And I simply want the Court to be attentive to what's been happening here. And I'd like some guidance on what's the fix for having had the test of foreseeability misstated and the verdict form and instructions isstated. Trial Tr. at 4158:8 4160:26. The Court stated that Plaintiffs waived the objection. The Court further declined to give any admonishment, but stated: “So again, I'm not going to do anything.I'm going to require the parties to make sure when you argue, you're arguing the jury instructions I allowed.” (Trial Tr. at 4163:22 24.) But the Court’s rulings have no teeth, as demonstrated by the multiple occasions wherein Caltrans violated the motions in limineorders without any repercussion. After oral argument on Plaintiffs’ objection, Caltrans continued with its closing argument for approximately 1.5 hours. The Court’s repeated statement that this trial must be “fair” can only be true if the Court’s prior in liminerulings are enforced. CALTRANS SHOULD NOT BE PERMITTED TO MISLEAD THE JURY ABOUT THE LAW OF THE CASE Caltrans’ misstatement of the law in exactly the manner in which the Court ruled was LAW OFFICES OF ALKUP ELODIA ELLY SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE SAN FRANCISCO, CA 94108 (415) 981 LAW CASE NO. 19CV346663 misleading is a serious matter and requires a cure. California cases have examined the issue of attorney misconduct in the context of whether an admonition would have cured the harm: the initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected (citation); if it would not, the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution.” [citation omitted] Those precepts perforce are applicable to a civil case.” Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 798 (disapproved of on other grounds Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21. Grimshaw, supra, 119 Cal.App.3d at 798, Defendant Ford did not raise any objection until after all closing arguments were completed which is the opposite of what occurred in the instant case. Here, the jury is still deliberatingand asking specific quest ions about CACI 1102. he Court has the opportunity to cure the defect and prejudice While discussing an appropriate response to the jurors’ questions about CACI 1102 on May 24, 2024 (day two of deliberations), Plaintiffs had asked the Court to read from the Sources and Authority for CACI 1102and specifically to the tationfrom the California Supreme Court decision in Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105: TheAct defines “[d]angerous condition” condition propertythat creates substantial (as distinguishedfrom minor,trivial insignificant) risk injurywhen such property adjacent property usedwith care manner which reasonably foreseeablethat will used.’ Public property dangerousconditionwithin the meaning section ‘is physicallydamaged, deteriorated, defective such way foreseeably endanger those usingthe propertyitself.’ Plaintiffs also proposed the following instruction which has been given in other dangerous condition cases against a public entity: Foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct. One may be held accountable for creating the risk of a slight possibility of injury if a reasonably prudent [person] would not do so. What is required to be foreseeable is the general character of the event or harm not its precise nature or manner of occurrence. Bigbee v. Pacific Tel. & Tel.Co.(1983) 34 Cal.3d 49, 57. Plaintiffs request that the Court give either admonishment while the jury is still LAW OFFICES OF ALKUP ELODIA ELLY SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE SAN FRANCISCO, CA 94108 (415) 981 LAW CASE NO. 19CV346663 deliberating. IV. PLAINTIFFS TIMELY MADE THEIR OBJECTION DURING CLOSING ARGUMENTS WHILE THE COURT STILL HAD THE OPPORTUNITY TO CURE THE DEFECT AND PREJUDICE In Cassim v. State Farm Insurance (2004) 33 Cal.4th 780, the Supreme Court held: “Generally, to preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial." (Miller v. Elite Ins. Co. (1980) 100 Cal.App.3d 739, 761 [161 Cal.Rptr. 322].) In addition to objecting, a litigant faced with opposing counsel's misconduct must also "move for a mistrial or seek a curative admonition" (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 468 [ 130 Cal.Rptr. 786]) unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice (id. at p. 469). This is so because "[o]ne of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks and thus obviate the necessity of a new trial." (Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 320 [ 74 Cal.Rptr. 534, 449 P.2d 750].) Here, Plaintiff’s objection was not waived as the objection was made before the defense argument was concluded and at a point when the court could have and should have admonished the jury and defense counsel that the argument describing the test for foreseeability constituted a statement of the law. Indeed, the argument was entirely improper. Plaintiffs did not stand by and do nothing – the appropriate objection was made before defense counsels argument was concluded and in plenty of time for the court to take remedial action. And as required, Plaintiffs’ counsel specifically requested curative action by the court. CONCLUSION For all of these reasons, the Court should consider the appropriate cure to assure that Plaintiffs receive a fair trial. Dated: May ALKUP ELODIA ELLY CHOENBERGER By: MICHAEL A. KELLY DORIS CHENG ANDREW P. McDEVITT Attorneys for PLAINTIFFS LAW OFFICES OF ALKUP ELODIA ELLY SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE SAN FRANCISCO, CA 94108 (415) 981 LAW CASE NO. 19CV346663 PROOF OF SERVICE Huang v. Tesla, Inc., et. al. Case No. 19CV346663 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the county where the mailing took place, My business address is 650 California Street, 26th Floor, City and County of San Francisco, CA 94108-2615. On the date set forth below, I caused to be served true copies of the following document(s) described as PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE LAW to: Jeanne Scherer, Acting Chief Counsel Attorneys For Defendant G. Michael Harrington, Deputy Chief STATE OF CALIFORNIA Counsel Phone: 510-433-9100 anda Low, Deputy Attorney Fax: 510-433-9167 Rosemary Love, Deputy Attorney Email: landa.low@dot.ca.gov Philip DiBoise, Deputy Attorney rosemary.love@dot.ca.gov Caltrans Legal Division Philip.DiBoise@dot.ca.gov Physical Address: maria.cordonero@dot.ca.gov 111 Grand Ave., Suite 11-100 genoveva.mercado@dot.ca.gov Oakland, CA 94612 Mailing: PO Box 24325 Oakland, CA 94623 1325 B. Mark Fong Counsel for Plaintiffs Seema Bhatt Phone: (415) 788-9000 Ember J. Oparowski Fax: (415) 398-3887 Minami Tamaki LLP MFong@MinamiTamaki.com 101 Montgomery Street, Suite 825 SBhatt@MinamiTamaki.com San Francisco, CA 94104 eoparowski@minamitamaki.com ESullivan@minamitamaki.com EEverett@MinamiTamaki.com BY ELECTRONIC TRANSMISSION: Pursuant to CCP 1010.6(e), I caused the above- titled document(s) to be electronically served on the persons at the electronic service addresses listed. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 28, 2024, at San Francisco, California. Karina Lara LAW OFFICES OF ALKUP ELODIA ELLY SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR PLAINTIFFS’ MOTION TO CURE DEFECT CAUSED BY CALTRANS IMPROPER ARGUMENT ABOUT THE SAN FRANCISCO, CA 94108 (415) 981 LAW CASE NO. 19CV346663