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Salerno v. Tudor1/30/2002
at, $20,000. It's 14,000. Plus, he threw out a number for 12,000. Plus, he wants you to add a number for 34 years more of pain and suffering. So he's gonna ask you for a judgment, conservatively somewhere around $50,000 which can be used to attach Mr. Tudor's earnings, his retirement, and his house."
Salerno contends that these comments indicated that Tudor did not have insurance. However, " vidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible to prove negligence or other wrongdoing." (Evid. Code, ยง 1155.) Tudor responds that these statements were only relevant to the question of damages, not liability, and were therefore not improper or prejudicial. We conclude that these statements did indicate to the jurors that Tudor did not have insurance, which could have increased their reluctance to find liability. Accordingly, as Salerno argues, these statements by Tudor's attorney were improper.
Salerno concedes that she never objected to the above statements during the trial. "Generally a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished." (Horn v. Atchison, T. & S.F. Ry. Co. (1964) 61 Cal.2d 602, 609-610; see also Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 797.) "In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice." (Horn, supra, at p. 610.) " `It is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have.' [Citation.]" (Ibid.)
Salerno claims that she did not object because she believed an objection would only have brought further attention to these statements. This excuse for not making an objection could always be offered and, if sufficient in itself to prevent waiver, would effectively obliterate the rule that an objection must be made to preserve the issue on appeal. In this case, the court could have cured the problem by reminding the jury that it was not to consider the question of liability insurance. A curative instruction would have been particularly helpful here where the attorney made a single improper reference, and did not aggravate the problem by arguing to the jury that it should consider Tudor's ability to pay when reaching its verdict.
Moreover, the improper statements by Tudor's counsel in his closing argument were not prejudicial given the following instructions provided by the trial court: "You must not be influenced by sympathy, prejudice or passion." (BAJI No. 1.00.) "Statements of counsel are not evidence . . . ." (BAJI No. 1.02.) In addition, the court admonished: "There is no evidence before you that the defendant has or does not have insurance for the plaintiff's claim. Whether such insurance exists has no bearing upon any issue in this case. You must not discuss or consider it for any purpose." (BAJI No. 1.04.) We presume, absent contrary indications, that the jury adhered to the court's instructions (People v. Pinholster (1992) 1 Cal.4th 865, 919), and therefore we conclude that the jury, when deliberating, did not consider whether Tudor had insurance.
Salerno cannot establish prejudice and certainly cannot establish that this is one of those "extreme cases" that did not require a proper objection to the statements. She has therefore waived raising this iss
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