MILLER, CRAIG vs DOPP, KLYVE

Stanislaus County - Civil - https://www.stanislaus.courts.ca.gov/online-services/tentative-rulings/civil-tentati ve-rulings Civil Tentative Rulings September 2, 2026 The following are the tentative ruling for cases calendared before Judge John R. Mayne in Department 21: CV-23-001208 - MILLER, CRAIG vs DOPP, KLYVE - Plaintiff's Motion for New Trial - HEARING REQUIRED. The Court has questions regarding the mitigation argument and needs the parties' assistance. The Court finds that the closing argument admonition was appropriate.

The Court finds that, if a new trial is not awarded on the mitigation issue, additur is appropriate for insufficient past medical damages and future medical damages. FACTUAL SUMMARY: This was a rear-end car crash on March 13, 2021, where Plaintiff's car was hit by Defendant's truck on Highway 99. Plaintiff claimed neurological damages leading to mood adjustment issues. Plaintiff also claimed some injuries. The jury returned a verdict against Defendant for $200,000 in past medical expenses, $72,500 in future medical expenses, $60,000 in past non-economic damages, and zero in future economic damages.

Plaintiff's expert Edward Angelone testified that Plaintiff had permanent cognitive defects that might worsen over time. Other Plaintiff's experts supported this view. Plaintiff's billing expert calculated fair market value of the medical bills at $319,365. (Amounts are rounded down to the nearest dollar.) Defendant's expert estimated the charges at $269,908. Plaintiff's expert Ms. Nebel estimated future expenses for care, including home care, cleaning, medical expenses, and other expenses at over $3,000,000.

Defense expert Dr. Tony Strickland testified that Plaintiff suffered a traumatic brain injury and had depression and anxiety. He testified further that Plaintiff had suffered from depression and anxiety. He further testified that Plaintiff's answers in testing indicated that he was not fully attempting to answer the questions accurately, so the degree of his cognitive impairment could not be determined. Strickland had testified at deposition that Plaintiff's medical treatment was spotty and deficient and that his condition would be improved even now by proper medical care.

In closing argument, the Court interrupted Plaintiff's counsel and gave a curative instruction for what it viewed as misconduct. NEW TRIAL STANDARDS Code Civ. Proc. section 657 outlines seven potential reasons for ordering a new trial. Plaintiff argues that legal errors by the Court and inadequate damages by the jury are cause for a new trial. The Court rejects the assertions of evidentiary error and error as to the corrective instruction in closing argument. The Court finds error in its loud statements to counsel in chambers which, while unlikely to have been overheard by the jury, still indicated a degree of dissatisfaction.

Nonetheless, if the corrective instruction was appropriate, a loud annoyed judge adds no demonstrable bias against Plaintiff. The corrective instruction was likely to alter the jury's view, and it should have. The Court has questions about whether there was instructional error. The Court cannot find a justification for the total lack of future pain and suffering damages suffered by Plaintiff. If a motion for new trial is not otherwise granted, the Court intends additur in some amount. Further, there is no justification for a past medical award of less than $269,908.

This totals $134,908 as an additur under section 662.5. PLAINTIFF'S ARGUMENT WAS IMPROPER AND COULD NOT STAND

The triggering statement was this: "MR. LABAT: Ladies and gentlemen, forget TBI, forget concussion. This case is about a 25-year-old young man with zero medical history. You did not hear any evidence in this case that he had anything wrong with him before, not a single medical record, not a single friend, mother, girlfriend of many years said, oh, yeah, he used to go to the doctor or X or he had back problems, he had headaches, he had cognitive issues, he was very forgetful, he had memory issues, he struggled with depression, anxiety.

He didn't like driving long drives or scary drives. You didn't hear any of that. You didn't hear any of that. I viewed this argument then, as now, as structural misconduct. In this case, the issue of the word "depression" used by lay witnesses was excluded in a close decision. Plaintiff argued that the use of the term was inappropriate because people might consider that as a diagnosis. I granted the motion to have the lay witnesses barred from using the term depression. Then, the former girlfriend Sadie Cupit did not show up; her deposition transcripts were littered with references to depression.

Defendant asked for reconsideration on the issue, given the nature of the transcribed statements, but the Court disbelieved it would be equitable to change its ruling based on Defendant's failure to provide the witness. Plaintiff asserts that the argument was that there was no evidence of a pre-crash diagnosis of depression, which would be accurate and arguably within the lines, an argument likely insufficient for sua sponte action by the Court. But that's not what was argued. This was the argument: " You did not hear any evidence in this case that he had anything wrong with him before, not a single medical record, not a single friend, mother, girlfriend of many years said, oh, yeah, he used to go to the doctor or X or he had back problems, he had headaches, he had cognitive issues, he was very forgetful, he had memory issues, he struggled with depression, anxiety."

And yet, a single girlfriend had asserted repeatedly that he struggled with depression prior to the crash. Plaintiff repeatedly argues that this statement goes to a medical diagnosis, but it quite simply does more than that. It says, "[N]ot a single friend, mother, girlfriend of many years said [...] he struggled with depression." Plaintiff argues there was no evidence of depression. Had counsel argued there was no diagnosis of depression, that would not have violated the ruling or the rules. Statements by witnesses are evidence.

Ordinary people can use the ordinary term "depression" to describe others. At least one witness did so many times during a deposition. Jackson v. Park (2021) 66 Cal.App.5th 1196 forbids the type of gamesmanship used in this case. In that case, counsel commented on the absence of evidence of alcohol use by his client. That evidence - which was ample - had been excluded by the trial court, and the appellate court affirmed the trial court's granting a new trial in that case. In this case, the Court was faced with an unhappy choice: stand by while prejudicial misconduct occurred, or do something to correct it.

As Jackson and other cases have noted, attorney misconduct is far more common than reversals for attorney misconduct. THE COURT'S ADMONITION WAS NOT MISCONDUCT AND WAS NOT IMPROPER Plaintiff relies on Lewis v. Bill Robertson & Sons Inc. (1984) 162 Cal.App.3d 650 as a comparable case. In that case, the judge opined that "no defect in the premises had anything to do with Plaintiff's fall." This is far cry from the situation here, where the Court is faced, based on counsel's actions, with a verdict supported by a crucial assertion that was not accurate.

Whether the Court's admonition exactly corrected the errant statement cannot be the standard; the Court had an obligation for the jury to know that the statement that there was no evidence by any friends or girlfriends that Miller was depressed before the crash was inaccurate. Further, the jury should not have believed that this portion of the argument had a reasonable basis.

Plaintiff's counsel did briefly explain the evidence that was excluded to the jury after this exchange. Not every judge would have handled it this way. The Court can (and often should) let slide various errors, and even certain sorts of improper argument. Here, this argument - that there was no evidence from his friend or girlfriend that he was ever depressed prior to the collision - would have deceived the jury. It had been litigated both on the record and in chambers. Defense counsel had repeatedly argued that failure to include this evidence would leave the jury with the errant belief that Plaintiff did not suffer from depression.

Plaintiff created this problem. Plaintiff's proposed cure is for me to have done nothing because counsel did not err. I disagree. OTHER RELEVANT CONTEXT The Court makes some other observations to put this in context; it could not have been a surprise to counsel that I would intervene if I believed there was substantial misconduct. The Court had previously had at least two conversations with counsel about misconduct. During jury selection, defense counsel said that based on his long-time dealings with the defense expert, the jury could trust him.

The Court stopped him in front of the jury and said that was improper vouching. Plaintiff cited to this exchange - appropriately, in my view - in closing argument. During the initial examination by Plaintiff of Defendant Dopp, Plaintiff's counsel discussed various aspects of the crash with doubtful relevance, such as leaking fluid from the engine. When asked in chambers about this, Plaintiff argued that credibility was an issue. The Court asked why, and Plaintiff's counsel said that it was an issue of the speed: Defendant had claimed that he was going 50 miles per hour but he may not have been honest about the speed, which may have been higher.

After the Plaintiff's expert estimated that Defendant's speed was 50 mph or below, I indicated in chambers that those representations caused me to make rulings allowing further questioning that I would not have permitted if given accurate information. These instances were isolated; this was not a trial otherwise infected with misconduct. THE COURT COMMITTED JUDICIAL ERROR BY BEING TOO LOUD IN CHAMBERS Testimony was provided that the Court severely admonished Mr. Labat in chambers. While no one outside appears to have heard the phrasing, I find it factually true that the jury heard a loud, unhappy judge.

I regret that I raised my (naturally loud) voice to a degree it could be heard outside. (Chambers are not close to soundproof and are directly adjacent to the courtroom. The jury is on the far side from chambers, adjacent to Plaintiff's counsel. The clerk sits very close to the chambers door.) Based on the Hancock declaration, it appears the words were not audible to the jury, but the tone was. The reference in the motion to "the exchange could be heard," is true as far that there was an exchange, but in fact the nature of the exchange appears to not have been heard by the people in the courtroom.

Mr. Labat said in chambers that he had not said that there was no evidence of pre-collision depression. Mr. Salute, in his declaration, said I did not give him a chance to explain himself, but Mr. Labat said at the time that he believed he was only talking about medical diagnoses and that we should look at the transcript. Defense counsel shook their head "no," at this and I agreed that was not what was said. Mr. Labat opposed my curative instruction, which I understood. Mr. Labat proposed that I take a break and reconsider; I declined that invitation.

Any prejudice that may have occurred was minimal. The admonition likely affected the jury's verdict, because if the jury had believed Mr. Labat's statement that there was no depression prior to the crash, it might have affected the verdict in his favor. The admonition itself allayed that potential prejudice. THE COURT HAS AN AFFIRMATIVE RESPONSIBILITY TO CONTROL THE COURTROOM The Court is required to uphold the integrity of the tribunal and its participants. (Judicial Canon 1, Judicial Canon 3D(2).)

Even a reprimand in front of the jury may be appropriate. (People v. Chong (1999) 76 Cal.App.4 th 232.) THERE IS NO JUDICIAL ESTOPPEL

Defendant does not cite a case that supports judicial estoppel of the request for a new trial. Vaghashia v. Vaghashia (2024) 106 Cal.App.5 th 188 is inapposite to this case. Opposing a motion for new trial, then filing a motion for new trial has some of the earmarks of estoppel - it may well be an attempt at two bites at the apple. But this does not precisely address the problem judicial estoppel is here to cure; further, the trial was almost over. It would be an unreasonable extension of the principle as the reliance factor here was simply to continue the trial; there was no factual finding that Plaintiff was attempting to reverse.

THE KENNEMUR ISSUES WITH DR. STRICKLAND Plaintiff argues that the mitigation statements by Dr. Strickland were inadequately stated at deposition and his statements were insufficient to reach the Kennemur v. State of California (1982) 133 Cal.App.3d 907 standard. Dr. Strickland had testified at the deposition, "So let me tell you what I meant by it is that if he does not get the treatment he should have gotten in this intervening period, that the levels of depression that I saw in him and the associate[ed] anxiety are likely to, I think, wax and wane."

Dr. Strickland also appeared to try to avoid the Kennemur question at the deposition. This was a close case then, as now. Defendant argues, essentially, that the Court was correct in its prior ruling and the Court carefully considered that ruling. This does not necessarily mean the ruling was correct and the Court would appreciate further assistance. THE MITIGATION INSTRUCTION MAY HAVE BEEN IN ERROR Defendant does not provide a legal argument for the issue of specificity required for the mitigation instruction.

Such an argument would assist the Court. INSUFFICIENT PAST MEDICAL DAMAGES WERE AWARDED Defendant's billing analyst, after cross-examination and redirect, came to a figure of $269,908. Defendant asserts that some of the medical care was unnecessary, but the evidence provided is weak. Defendant's own billing analyst came to this figure using a Howell analysis. INSUFFICIENT FUTURE NON-ECONOMIC DAMAGES WERE AWARDED Defendant cites to Audish v. Macias (2024) 102 Cal.App.5th 740 for the principal that future damages need not be awarded even when future medical care is.

This case does defeat Plaintiff's claim that such damages should be automatic with future medical care, and the distinctions do not appear to logically alter the statement. Defendant further relies on its witnesses who said no traumatic brain injury occurred, but those witnesses were not credible as against Dr. Strickland, who found that a traumatic brain injury occurred, that Defendant suffered, and continues to suffer. Dr. Strickland had explicitly tested Plaintiff and was the key defense expert.

In this case, where future suffering was asserted by Dr. Strickland and no mitigation defense was made available, some amount had to be awarded. Had some number been chosen, the Court would defer to the jury's findings. Here, the Court must independently review the record and determine an equitable figure if a new trial is not granted on the mitigation issue. The Court will hear argument, and if the Court takes the matter under submission, it will be for a very brief period. The Court apologizes for the delay in ruling.

CV-24-006618 - CATT, TODD MICHAEL vs RENTERIA, MARCOS, Jr - a) Defendant's Motion for Protective Order to Stay Discovery Pending Determination on Defendants' Motion to Strike Doe Amendments and Motion to Quash Deposition Notice - MOOT. b) Defendant's Motion to Strike Amendments to Complaint Based on Lack of Good Faith, Abuse of Process, and Collusive Misrepresentation - DENIED. As determination of the motion is being made, the matter is moot. Each side cites cases at the demurrer or summary judgment stage, which we are not at.

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