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Martinez v. State of California Dept. of Transportation G048375 2015 DJDAR 7918 4th District

Cumulative effect of Caltrans attorney’s repeated, egregious misconduct warrants reversal of judgment in favor of Caltrans in case involving motorcycle accident.

Motorcyclist Donn Martinez was riding a funeral train with a group affiliated with the “Set Free” ministries when he took a spill on the “Orange Crush” freeway interchange after hitting a “B4 curb.” Martinez sued the State of California Dept. of Transportation (Caltrans), alleging dangerous condition of property. Concerned over the negative perception of motorcyclists, his attorney successfully filed several in limine motions, seeking to exclude any references to Martinez’s “membership in any motorcycle club/gang,” a 2003 termination from employment, and any evidence designed to elicit sympathy for Caltran’s dire financial condition. Notwithstanding those orders, Caltrans attorney, Karen Bilotti, made several statements besmirching Martinez’s character by, among other things, linking him to Nazis and alluding to Caltran’s financial status. Despite counsel’s repeated objections – and the trial court sustaining those objections and issuing admonitions – Bilotti continued to make the same references, directly violating Judge Di Cesare’s in limine order. The jury ultimately rendered a defense verdict.

Reversed and remanded. An attorney commits misconduct when he or she panders to the prejudice, passion or sympathy of the jury. For a judgment to be reversed based on the cumulative effect of attorney misconduct, prejudice must be shown. The court considers a list of four factors outlined in Sabella v. Southern Pac. Co. to determine whether attorney misconduct is prejudicial. Here, Bilotti made numerous, obvious misconduct by alluding to Caltrans’ financial condition and the Nazi reference – which was particularly egregious. Moreover, three of the four Sabella factors weighed heavily on the side of prejudice. For one, Bilotti asked the same questions again and again, oblivious to the judge’s repeated rulings and admonitions. The judge, meanwhile, seemed to have excused Bilotti’s contemptuous, disrespectful conduct. Thus, this court reversed and remanded the matter due to prejudicial attorney misconduct and referred the matter to the State Bar.

For those of us with cases in front of Judge Di Cesare, keep this one in mind. Keep in mind that this is not uncommon when dealing with certain governmental agencies, either. Though I think this is the exception and not the rule. I knew Karen Bilotti years ago and am a little surprised this happened. But, the fact that the 4th DCA agreed to publish this means that the practice happens more often than not and/or this example was particularly egregious.