I. inadequacy of damages *

1. inadequacy of damages

Inadequate damages were awarded when the jury found by special verdict that the defendant had intended a harmful touching that caused harm or damage to the plaintiff, but awarded zero for damages. It is clear from the special verdict that 9 of the 12 jurors found that at least nominal damages had occurred, but were confused on how to indicate it, when they awarded $0 instead of $1.

The special verdict form based on BAJI 7.50 clearly indicated that 9 of the 12 jurors believed that harm or damage occurred. The zero dollar damage aware conflicts with this. Of the two answers, it is more likely that the jury was confused about the meaning of nominal damages and that zero dollar damages would indicate that there were none.

In Avina v. Spurlock (1972) 28 Cal. App.3d. 1086, 1090, the court modified an award to $1.00 as the correct amount indicating nominal damages. "Nominal damages are properly awarded in two circumstances: (1) Where there is no loss or injury to be compensated but where the law still recognizes a technical invasion of plaintiff’s rights or a breach of a defendant’s duty: and (2) although there have been real, actual injury and damages suffered by a plaintiff, the extent of plaintiff’s injury and damages cannot be determined from the evidence presented. [citations omitted] (Avina v Spurlock 1088).

The fact that only nominal damages are awarded does not preclude the jury from finding malice and awarding punitive damages. In Sterling Drug, Inc. v Benatar, 99 Cal. App.2d 393 the court affirmed an award of $1 nominal damages and $200 as exemplary damages and costs.

The fact that the jury did not find malice after "not having any doubt that he pushed me down the steps", indicated confusion on the part of the jury about what constitutes malice. In Robinson v. Early,(1967) 248 Cal. App.2d 19, 23 the court stated that "the great weight of authority is that any assault and battery is a wilful and malicious injury, and therefore liability for such injury is not dis-chargeable . . . under this line of case the word "wilful" as used in the bankruptcy Act means nothing more than "intentional" and the maliciousness necessary to bring a liability within the exception need only be that which the law implies from the intention doing of a wrongful act and the injury of another without just cause or excuse." The Defendant, here, asserted no affirmative defense to justify or excuse the act.

2. attorney misconduct
1. Knowingly eliciting inadmissible testimony

There was irregularity in the proceedings of the defense attorney by which Plaintiff Robinson, was prevented from having a fair trial in that elicited testimony that he knew was inadmissible as being hearsay and irrelevant and highly prejudicial. Mr. Kellner knew that the testimony about building security was hearsay and therefor inadmissible as evidenced by his statement during the hearing on the motion in limine, but chose to elicit it knowing that it would prejudice the jury whether or not I objected. Said testimony was prejudicial as evidenced by the jury foreman’s statement that they chose not to find malice because of the testimony about the building security policy.

In Balistreri v. Turner (1964), 227 Cal. App.2d 236, 244 the court state that "In People v Wells [citation] the court pointed out that where counsel asks questions which he know to be inadmissible and improper without the expectation of answers and with the clear purpose of prejudicing the jury against the defendant, the harm lies in the mere asking of the questions and the judgement must be reversed unless it appears that the questions could not have influenced the verdict. In Dastagir v Dastagir (1952) [citation] the court held the asking of such improper questions to constitute reversible error despite the fact that appellant’s counsel failed to object to the questions. In so holding, the court stated, . . . If opposing counsel objects and his objection is sustained the jury may well speculate on what the answer would have been. . . In such circumstances for opposing counsel to object is generally more damaging than to permit it to be answered without an objection."

2. Improper closing and reference to financial information

There was irregularity in the proceedings of the defense attorney which prevented the plaintiff from getting a fair trial in that Mr. Kellner’s reference to his daily attorney fees and plaintiff’s status as a pro per, was improper in that it was a fact not in evidence, was irrelevant, made by an attorney who was not a witness, and was prejudicial in that it would tend to make jurors believe that the defendant had been penalized by having to pay his attorney fees and that plaintiff’s claim that his emotional disturbance should be measured by his efforts to prosecute the law suit should be nullified.

"While a counsel in summing up may indulge in all fair arguments in favor of his client’s case, he ma not assume facts not in evidence or invite the jury to speculate as to unsupported inferences." (Malkasian v. Irwin (1964 61 Cal. 2d 738, 747)

"Justice is to be accorded to rich and poor alike and a deliberate attempt by counsel to appeal to social or economic prejudices of the jury, including the wealth or poverty of the litigants, is misconduct where the asserted wealth or poverty is not relevant to the issues of the case." (Hoffman v. Brandt (1966) 65 Cal. 2d 549, 552-553).

Along the same line evidence as to ones insurance status has been held to be inadmissible. "The evidence is regarded as both irrelevant and prejudicial . . . Hence, not only is it subject to objection and exclusion, but any attempt to inject it by question, suggestion or argument is considered misconduct of counsel, and is often held reversible error. [Citations] " Neumann v. Bishop, 59 Cal. App.3d 451, 469.

Here, Mr Kellner is trying to prejudice the jury against the plaintiff who was acting in pro per and therefor did not have to pay attorney fees, and for the defendant who was having to pay Mr. Kellner’s very high attorney fees. This ignores the fact that the defendant could have acted in pro per also, but chose to pay an attorney – because he could afford to pay an attorney. None-the-less being that the jury was composed of mostly middle and upper middle class professional and business people, they were more likely to identify with the Defendant who is a record producer, than with the Plaintiff who drives a taxi. Mr. Kellners comment outside the court house that I had cost his client a lot of money, indicates what his intent was.

3. sanctions

Appropriate sanctions should be imposed upon Defendant’s attorney, Mr. Kellner for his repeated statements about the claim that he would have kicked my ass if he had been in Defendant Luchansky’s place. Such behavior violates numerous codes and rules (See points and authorities). In both witnessed instances, jurors were close enough to hear the statements. Neither instance effected the verdict. However, in the first instance, if the alternate juror had been used the jury would have been tainted. In the second instance, Mr. Kellner has interfered with the legitimate need of the plaintiff to interview the jurors. Such interviews are vital in determining whether or not the verdicts were properly arrived at. Also, Mr. Kellner has not only interrupted and disrupted the interview, but he has attempted to prejudice the juror from cooperating with the plaintiff, by making the juror believe that the Plaintiff had done something so contemptuous that extreme violence against him was justified.

A party who is acting in pro per is held to the same standards as any other attorney. Mr. Kellner repeatedly argued to the court, that it should show the plaintiff no deference because of his status as pro per. Mr. Kellner failed to give the plaintiff the same respect that another attorney would be due. It is hard to believe that Mr. Kellner would have treated an attorney or a represented plaintiff the way he did the plaintiff acting as pro per when he made his "I would have kicked your ass." Such behavior would have been considered contemptuous and no attorney would have tolerated such a comment made to him or to his client. When determining whether to assess sanctions against Mr. Kellner, the court should hold Mr. Kellner to the same standards as if were interacting with an attorney instead of a pro per.

1. Violations

The following are some of the Codes and Rules that Mr. Kellner’s conduct violated:

The Rules of Professional Conduct require that a member of the State Bar "connected with the case shall not communicate directly or indirectly with any juror." (Rules Prof. Conduct, rule 5-320(B)) Mr. Kellner clearly violated this requirement when he made his comments so that the alternate juror could hear them prior to the verdict being determined.

The Business and Professional Code 6068 (b) states that "It is the duty of an attorney to do all of the following … (b) To maintain the respect due to the courts of justice and judicial officers."

The Code of Civil Procedure Section 1209. (a) "The following acts or omissions in respect to the court of justice or proceedings therin, are contempts of authority of the court: … 2. A breach of the the peace, boisterous conduct or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding: … 8 any other unlawful interference with the process or proceedings of a court:" Arguably, Mr. Kellner’s "kick your ass" comments were in the immediate presence of the court when they were in front of the courtroom door and interfered with the proceeding that required that a juror be separated from such prejudicial remarks.

The Code of Civil Procedure section 575.2, subdivision (a) and Superior Court of Los Angeles County Rules, rule 7.13 impose sanction for failure to comply with the local rules. Superior Court of Los Angeles County Rule 7.12 (l)(2) states that "Counsel should always deal with parties, counsel, witnesses, jurors or prospective jurors, court personnel and the judge with courtesy and civility."

 

4. CONCLUSION