Lasarte v. Catalina Cylinders CA2/7

Filed 7/23/21 Lasarte v. Catalina Cylinders CA2/7
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JUAN LASARTE et al., B295059

Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC514465)
v.

CATALINA CYLINDERS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Mark A. Borenstein, Judge. Affirmed.
Horvitz & Levy, Daniel J. Gonzalez, Mitchell C. Tilner;
Bassi, Edlin, Huie & Blum, Fred M. Blum, Michael E. Gallagher,
Jr., and Lisa M. Stevenson for Defendant and Appellant.
Balaban & Spielberger, Daniel K. Balaban, Andrew J.
Spielberger; Esner, Chang & Boyer, Holly N. Boyer, Shea S.
Murphy; Greene, Broillet & Wheeler and Browne Greene for
Plaintiffs and Respondents.

__________________________
 Catalina Cylinders appeals from an order granting in part
the motion for new trial filed by the heirs of Roberto Jesus
Lasarte and by Roberto’s brother, Juan Lasarte, as to their strict
liability failure to warn cause of action following a jury verdict in
favor of Catalina.1 Roberto was killed, and Juan was seriously
injured when a cylinder, manufactured by Catalina to hold
compressed carbon dioxide, was filled with compressed nitrous
oxide by Roberto and exploded at Roberto’s place of business.
The jury found Catalina was not negligent and had not failed
adequately to warn of the dangers of filling a cylinder designed
for carbon dioxide with nitrous oxide. Plaintiffs moved for a new
trial based on attorney and juror misconduct relating to
admission of evidence of a settlement entered into between
plaintiffs and former codefendant Rotarex North America, which
manufactured the valve that controlled the filling of the cylinder.
The trial court found both attorney and juror misconduct had
occurred and the misconduct was prejudicial as to plaintiffs’
failure to warn cause of action, but not their negligence cause of
action.
On appeal, Catalina contends the jury’s findings on the
special verdict form that Catalina had not failed adequately to
warn rebutted any presumption of prejudice from the attorney
and juror misconduct because the jury would not have considered
the conduct of Rotarex in deciding whether Catalina’s warnings
were adequate. Applying a deferential abuse of discretion
standard, we affirm.

1 To avoid confusion, we refer to Roberto and Juan by their
first names.

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 FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaints
On July 9, 2013 Juan filed a complaint alleging causes of
action for negligence and strict products liability against Catalina
and others. On August 21, 2013 Roberto’s children, Isabella
Angeline and Roberto Angel Lasarte, and Roberto’s parents,
Maria and Roberto Manuel Lasarte, filed a complaint alleging
wrongful death causes of action for negligence and strict products
liability against Catalina and others.
On July 8, 2015 the plaintiffs amended their respective
complaints to name Rotarex as a defendant. The cases were
consolidated for trial.

B. Plaintiffs’ Motion in Limine
Before trial, plaintiffs filed a motion in limine to exclude
evidence of a prior settlement with Rotarex. Catalina opposed
the motion, arguing evidence of the settlement was admissible to
impeach the credibility of plaintiffs’ expert witnesses “about how
they changed their testimony concerning the cause of the
accident” after the settlement. The trial court granted plaintiffs’
motion in part, allowing Catalina to use evidence of the
settlement only “to impeach expert witnesses who have changed
their opinions if they offer evidence concerning why they changed
their opinion.”

C. Testimony at Trial
1. The explosion and warning label
On June 13, 2012 Juan and Roberto were at Noswerks, a
business owned by Roberto. Roberto sold performance auto parts

3
and serviced cylinders provided by his customers by refilling the
cylinders with nitrous oxide for auto racing. On that day,
Roberto asked Juan to hand him something. Then there was an
explosion, which killed Roberto and seriously injured Juan. Juan
woke up in the hospital and did not recall what had happened.
The last thing Juan remembered was Roberto saying to him,
“‘[C]an you hand me that[?]’” Juan did not know whether
Roberto was filling a cylinder with nitrous oxide when the
explosion occurred.
Catalina manufactured and sold the cylinder that exploded,
which was intended to be filled with carbon dioxide for use with
carbonated beer and soda. The cylinder was equipped with a
Rotarex “high-flow tank” valve that was used to transfer nitrous
oxide from an external tank into the cylinder. The Rotarex valve
contained a “rupture disc,” which is a small piece of metal that is
designed to rupture before the tank explodes. The cylinder was
labeled “B20,” which was intended to denote that it was a
“beverage cylinder.” Affixed to the cylinder was the following
warning label: “A liquefied gas cylinder can be dangerous.
Improper valve installation, filling, transporting, use, storage,
maintenance, inspection, retesting, and disposal may result in
cylinder failure, property damage, personal injury and/or death.
Keep out of reach of children. . . . Never fill a condemned
cylinder, a cylinder of questionable integrity, a cylinder requiring
retesting, or a cylinder designed for another service. . . . Use only
by trained professionals and designated charge, in a safe
environment, and when in retest intervals.”
Catalina also manufactures cylinders to hold nitrous oxide
for use in auto racing. Catalina’s carbon dioxide and nitrous
oxide cylinders have the same general appearance; both are made

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from aluminum in the same size and shape. Catalina
manufactures its carbon dioxide and nitrous oxide cylinders in
the same way, using “cutting oil” in the process that can leave
hydrocarbon residue in the cylinder. After the manufacturing
process, Catalina cleans the cylinders. Catalina then uses a
third-party service to test its nitrous oxide cylinders for
remaining hydrocarbon, but it does not test the carbon dioxide
cylinders. Catalina sells only empty cylinders and does not sell
any gas.
Plaintiffs’ expert Dr. David Lenorovitz testified it was
hazardous to use Catalina’s carbon dioxide cylinder to hold
nitrous oxide and the label on the carbon dioxide cylinder that
exploded did not effectively communicate the hazard, especially
given that the warning contained many words in a small area.

2. The testimony of Drs. Romig and Stevick
Dr. Joe Romig testified for plaintiffs as an expert in
astrophysics and geophysics. He opined compressed nitrous oxide
can react with hydrocarbon, creating a combustion reaction and
releasing energy. High pressure of 3,600 to 4,000 pounds per
square inch would have caused the cylinder that exploded to
rupture. Although the cylinder was equipped with a valve
containing a rupture disc designed to burst at 3,000 pounds per
square inch of pressure, thereby relieving the excessive pressure,
the disc did not “pop.” Dr. Romig believed this could have been
due to the rapid rate at which the pressure rose in the cylinder,
which could have caused the cylinder to explode before the disc
ruptured.
Dr. Romig gave plaintiffs’ counsel his initial opinion in
February 2016 that an internal explosion in the cylinder caused

5
the accident, but he was not asked to perform further work on the
subject until March 2018. On cross-examination, Catalina’s
attorney, Fred Blum, asked Dr. Romig whether he was told
before February 2016 that there was a defect in the pressure
relief valve attached to the cylinder. Dr. Romig stated he was
told “the holder for the valve for the burst dis[c] was 20 percent
smaller than it should have been.” At that time, Dr. Romig was
aware plaintiffs “were looking at the pressure relief valve and
also wanted to consider the internal explosion.” Blum inquired,
“Now, when they called you up again in . . . 2018, were you told
that the reason they wanted now to get back to you and
reevaluate your opinion was because the case against the valve
people had settled?” Dr. Romig responded he was not told about
the settlement at that time, although he learned of it later.
Dr. Romig testified that when plaintiffs’ attorney Daniel Balaban
contacted him in 2018, Balaban “wanted [him], based on what
[he] had done before, to look at the internal explosion.” Balaban
later set up a phone call between Dr. Romig and Dr. Glen
Stevick.
Dr. Stevick testified for plaintiffs as an expert in
mechanical engineering and failure analysis. Dr. Stevick opined
that if hydrocarbon is present in a cylinder being filled with
nitrous oxide, static charges in the hose could cause “a very
violent ignition or explosion.” By examining the remains of the
cylinder that exploded at Noswerks under ultraviolet light,
Dr. Stevick identified the presence of hydrocarbon, which he
believed caused the explosion. On cross-examination, Blum
asked Dr. Stevick whether he had earlier declared under penalty
of perjury that the explosion would not have occurred if the
Rotarex valve and rupture disc attached to the cylinder had not

6
malfunctioned. Dr. Stevick replied, “Yes, I believed that at the
time.” Dr. Stevick had believed the valve was defective because if
the rupture disc had been paired with the wrong holder, “that
was clearly going to increase the pressure” at which the disc
would rupture. Dr. Stevick acknowledged he had previously
opined Rotarex should have warned the user about the potential
risk of mispairing the disc and holder, “[o]r supplied a device that
[is] already welded together so you can’t mix them up.”
Dr. Stevick explained he now believed a nondefective valve
would have slightly lessened the intensity of the explosion, but he
did not think “it ha[d] a chance with this fast of a detonation.”
Dr. Stevick attributed his change in opinion to his more complete
review of the evidence and more precise calculations. Blum
asked Dr. Stevick whether it was correct he decided more closely
to examine the cause of the explosion “only after the settlement
was reached with Rotarex.” Dr. Stevick replied he did not know
of the settlement at the time and learned of it later, but he could
not recall when.
The trial court then asked a juror question of Dr. Stevick
that read, “‘When did your lab first invoice for testing the
Catalina Cylinders explosion theory?’” Dr. Stevick responded it
was on April 5, 2018. The court then read a follow up juror
question that asked, “‘When did your lab last invoice for the
testing related to the Rotarex disc theory?’” Dr. Stevick answered
February 28, 2018.

D. Catalina’s Closing Argument
During his closing argument, Blum addressed the
settlement between plaintiffs and Rotarex, arguing, “Dr. Stevick
not only makes assumption after assumption after assumption,

7
but he does it after the plaintiffs settle with Rotarex and he does
it after he claims that Rotarex is the sole cause; the settlement
happens and now it’s Catalina Cylinders. [¶] . . . He’s a gun for
hire. And for those of you that believe that this is a coincidence
he changed his mind, I’ll give you one fact or piece of testimony.
And it actually comes from the mouth of one of the jurors, the
question. [¶] One of the questions from the juror asked
Dr. Stevick, when did you stop billing on Rotarex. [¶] I’m not
going to tell you who, but whoever it is, give yourself a pat on the
back. The date he said the last bill was February 28th. The
settlement, February 27th. So they stopped billing the day after
the settlement. And he said I don’t know when the settlement
happened. It’s just [an] amazing coincidence.”
Later in his closing, Blum returned to the subject of the
settlement, arguing, “So at the end of the day, what we do have is
a valve that everybody says was malfunctioning. We have a
valve manufacturer who should have given a warning. We have
a valve that was put together the wrong way. And as a result, it
didn’t blow when it should have blown. [¶] . . . And remember,
other than Dr. Stevick they never put on a witness that said . . .
that it operated properly. [¶] So when we look at percentages,
the majority of the liability, the majority of the fault goes to
Rotarex. They’re the party who was responsible according to the
plaintiffs up until the moment they settled with Rotarex. And
then Dr. Stevick changed his mind after the settlement. [¶] Up
until the settlement, it was Rotarex’s fault. Up until the
settlement, Rotarex should have done a cost benefit analysis and
their failure to do it caused the damage. Up until the settlement,
Rotarex should have warned, but they didn’t. [¶] Up until the
settlement, Dr. Stevick concluded that had it not been for

8
Rotarex there would not have been the deaths. His decision to
change his mind smells. It doesn’t pass the smell test. And the
way it occurred with plaintiffs’ attorneys calling up Dr. Romig
and then Dr. Romig . . . intervening and then starting to work
dealing with Catalina increases the stench. [¶] Remember,
February 28th, he stops working. April 4, he starts on Catalina
Cylinders. He’s not doing anything in between. The April 4th
date ties into Dr. Romig’s testimony as to when they have this
conference call, which was occasioned by Mr. Balaban calling
Dr. Romig and saying let’s start on the Catalinas. It reeks. The
true fact is, the party they settled with was the party that was
responsible.”
At this point, Balaban objected, and Blum responded, “I’ll
clean it up, Your Honor.” The trial court made no ruling, and
Blum continued, “I’m not asking you to say the settlement is
evidence of anything except [the] motive as to why they changed
their mind. I want to be clear on that. And you shouldn’t
conclude that from a settlement Rotarex was responsible. That
would be improper. [¶] But you can conclude that it was the
motive that caused Dr. Stevick to change his mind. And it was
the motive that caused Mr. Balaban to call up Dr. Romig and say
let’s start working against Catalina Cylinders. [¶] That’s proper
and that’s the reasonable assumption to make. It’s the motive.
It’s the reason why.”
After Blum completed his argument, the trial court stated
outside the presence of the jury, “You know, Mr. Blum, you’re an
excellent lawyer and you gave for the most part an excellent
closing argument, but there were . . . points that really troubled
me.” The trial court expressed concern with Blum’s statement
“the true facts here is the party that settled was the party

9
responsible. [¶] Now, that might have just slipped out, but that
is contrary to the jury instruction that I told them, that I said
that you can only—that you can’t use the fact of the settlement
for anything related to responsibility.”
When the jury returned, the trial court instructed, “As I
previously instructed before the closing arguments, you are not
allowed to consider the settlement to determine responsibility for
any harm. You may consider the evidence only to decide whether
a witness is biased or prejudiced because of the settlement and
whether his testimony is believable.”

E. The Verdict and Judgment
On August 2, 2018 the jury reached a verdict and returned
the special verdict form. Question 1 on the special verdict form
asked, “Was Defendant Catalina Cylinders negligent?” The jury
answered, “No.” The form then instructed the jury to skip
question 2 (based on a “no” answer to question 1). The jury did
not answer question 2, which asked whether Catalina’s
negligence was a substantial factor in causing the harm.
The jury then answered the following questions on
plaintiffs’ strict liability failure to warn claim:
“3. Did Defendant Catalina Cylinders manufacture the
subject cylinder?” The jury marked, “Yes.”
“4. Did the subject cylinder have potential risks that were
known or knowable in light of the scientific knowledge that was
generally accepted in the scientific community at the time of
manufacture?” The jury marked, “Yes.”
“5. Did the potential risks present a substantial danger to
persons using or misusing the subject cylinder in an intended or
reasonably foreseeable way?” The jury marked, “Yes.”

10
 “6. Would ordinary persons have recognized the potential
risks?” The jury marked, “No.”
“7. Did defendant Catalina Cylinders fail to adequately
warn or instruct of the potential risks?” The jury marked, “No.”
The jury reached its verdict on question 7 by a vote of nine
to three, and therefore it did not answer any further questions.
Question 8 asked the jury, “Was the lack of sufficient instructions
or warnings a substantial factor in causing harm to Roberto J.
Lasarte and Juan Lasarte?” Had the jury answered question 8 in
the affirmative, the verdict form instructed the jury to answer
further questions regarding damages and comparative fault,
including question 19, which asked the jury to apportion
responsibility among Catalina, Rotarex, Roberto, and Custom
Performance (which brought the exploded cylinder to Noswerks
for refilling).
On September 19, 2018, based on the jury’s findings on the
special verdict form, the trial court entered judgment in favor of
defendants.

F. Plaintiffs’ Motion for a New Trial
On October 4, 2018 plaintiffs filed a notice of intention to
move for a new trial. In their new trial motion, plaintiffs argued,
among other things, Blum committed prejudicial misconduct by
arguing in closing the Rotarex settlement demonstrated Catalina
was not liable. Plaintiffs further argued individual jurors
committed prejudicial misconduct by asserting during
deliberations the settlement demonstrated Rotarex’s
responsibility for the harm. Plaintiffs attached declarations from
three jurors. Juror E. Lira declared, “During deliberations, some
of the jurors mentioned Rotarex and the fact that there had been

11
a settlement with them and the plaintiff[s]. Some of the jurors
said during deliberations that plaintiffs got money from Rotarex
and if they settled out of court it was because Rotarex was
admitting fault, so it’s not Catalina Cylinders[’] fault, it’s
Rotarex’s fault. [¶] . . . When we first walked into the room,
before we started deliberations, Juror . . . Soto said ‘I do not
believe the family deserves anything’ and that ‘Catalina
Cylinders should not be held responsible.’” Juror N. Flores
declared, “During deliberations, some of the jurors mentioned
Rotarex and their settlement and that Rotarex was responsible
for this.”2
In opposition, Catalina argued any attorney misconduct
was cured by the trial court’s admonitions and plaintiffs failed to
show prejudicial juror misconduct. Catalina filed declarations
from two jurors. Juror D. Soto declared, “Our deliberations were
based on the special verdict form, and we went question by
question. As such, the focus was on Catalina Cylinders’ liability,
and we did not really discuss the family. [¶] . . . The majority of
our deliberations focused on whether the Catalina Cylinders’
warning label was adequate. [¶] . . . We took out the label and
passed it around for each juror to review. Each juror had the
opportunity to discuss his or her opinion as to the warning label.
Everyone listened to each person and everyone had a chance to
speak. [¶] . . . [¶] . . . [¶] . . . I remember the mention of
‘Rotarex’ at some point while with my fellow jurors. I cannot
remember whether the word ‘settlement’ was also discussed in
conjunction with the ‘Rotarex’ reference. I cannot remember

2 Plaintiffs also attached a declaration from juror D. Hall,
which did not include statements on juror misuse of the
settlement evidence.

12
whether the ‘Rotarex’ referral was during actual deliberations or
after the verdict was read and we were waiting—with the
alternates—in the jury room for the Judge to speak to us. In any
event, the mention of ‘Rotarex’ had no impact on my decision as
to Catalina Cylinders’ negligence or failure to warn.” Juror
D. Ancayan declared, “While I recall someone mentioning the
Rotarex settlement, it was brought up after our deliberations
were over, and the verdict was reached. The mention was made
when we were waiting in the deliberation room for the Judge to
come and speak to us.”
The trial court granted in part and denied in part plaintiffs’
motion. In its written ruling, the court held plaintiffs’ juror
declarations regarding the Rotarex settlement were admissible.
The court found “the Lira Declaration is the most specific and the
most credible of the declarations on this point. Indeed, Juror
Flores more generally corroborated Juror Lira. That the subject
was discussed, Juror Lira’s statements [are] supported by the
Defense declarants, Juror[s] Soto and Ancayan. The Court is
mindful that Juror Lira was the sole juror to vote against the
nine juror majority on both question 1 and question 7 in the
special verdict form, which might suggest a strongly held view in
favor of the Plaintiffs. However, the Court still believes Juror
Lira was credible. The Court observed Juror Lira during the
trial. He appeared focused and alert throughout and in the
Court’s view, conscientiously served as a juror. Hence, the
admissible evidence demonstrates misconduct in connection with
the Rotarex settlement during the jury deliberations, which
raises a presumption of prejudice.”
The trial court also found Blum’s references to the
settlement during closing argument constituted misconduct,

13
stating, “The settlement between the Plaintiffs and Rotarex was
the subject of a motion in limine and a spirited argument by
Plaintiffs’ counsel on Motion in Limine No. 6. In the end, the
Court ruled the settlement could not be used to suggest Rotarex
was responsible for the explosion but could be used for the limited
purpose of impeaching the expert opinion testimony of
Dr. Stevick. Dr. Stevick changed his expert opinion after the
settlement. At the time of Rotarex’s summary judgment motion,
Dr. Stevick blamed the Rotarex valve for the explosion. He
testified he changed his opinion to implicate Catalina Cylinders
after he received additional information from counsel and
another of Plaintiffs’ expert[s], Dr. Romig. The Court held on the
motion in limine that the intervening settlement was admissible,
not to prove liability, but only to impeach the second opinion by
Dr. Stevick. [¶] . . . The only permissible argument here was
that Dr. Stevick’s second opinion should not be believed because
it came after Rotarex settled. [¶] Counsel did not limit the
argument to the change in testimony of Dr. Stevick. Instead,
counsel stated ‘the true fact is, the party they settled with was
the party that was responsible,’ . . . after a series of statements
that began ‘[u]p until the settlement, it was Rotarex’s fault.’ . . .
By tying the settlement with Rotarex to Rotarex’s fault, defense
counsel went beyond merely using the settlement to impeach
Dr. Stevick. Instead[,] the argument implicated the very policy
reason why settlement evidence is explosive and usually
excluded. The argument was not that Dr. Stevick’s second
opinion should be disbelieved because he changed it after . . .
Rotarex settled, though counsel did mention this as well. But
counsel’s argument largely neglected the proper use—

14
Dr. Stevick’s impeachment, and focused on the improper use,
Rotarex settled because it was responsible for the explosion.”
The court noted Balaban’s objection and Blum’s attempt to
“clean it up,” but “ultimately [Blum] did not. Instead, counsel
said ‘I’m not asking you to say the settlement is evidence of
anything except [the] motive as to why they changed their
mind. . . . And you shouldn’t conclude that from a settlement
Rotarex was responsible. That would be improper.’ Then counsel
identified the only admissible reason to mention Rotarex at all.
‘But you can conclude that it was the motive that caused
Dr. Stevick to change his mind.’ That is exactly where defense
counsel should have left it. But defense counsel continued that
the settlement was relevant to ‘the motive that caused
Mr. Balaban to call up Dr. Romig and say let’s start working
against Catalina [C]ylinders.’ Mr. Balaban’s motive to ask for an
expert opinion from Dr. Romig is irrelevant.”
As to the prejudice to plaintiffs caused by the attorney and
juror misconduct, the trial court reasoned, “That the additional
instruction and counsel’s own statement were not enough [to
direct the jury], is a testament to the power of settlement
evidence and a cautionary tale about the wisdom of Evidence
Code [section 1152] and CACI [No.] 217. The Court finds that the
argument caused prejudice to Plaintiffs because the additional
instructions were insufficient to alleviate the taint of the
improper use of the Rotarex settlement. In the proverbial sense,
once the improper argument was made, neither the Court nor
counsel could put Humpty Dumpty back together again. [¶] But
even if the closing argument was not prejudicial, there is
admissible evidence some jurors disregarded the instructions and
counsel’s later statement about the use of the settlement. . . .

15
The evidence raised a presumption of prejudice that was not
rebutted by the evidence from one juror, which was less credible
[than] the other admissible evidence, that the jurors mentioned
the Rotarex settlement only after the verdict was reached.”
The court continued, “The lawyer and juror misconduct
concerning the Rotarex settlement impacts the two causes of
action differently . . . . On the negligence claim, the jurors were
concerned with Rotarex only after they found Catalina
negligent . . . . [¶] It is also possible someone could have
mentioned Rotarex on the substantial factor question, that is,
Catalina[’s] conduct was not a substantial factor because Rotarex
settled and was responsible. But the jurors never got to
Question 2. [¶] In the Court’s view, it is unlikely the jury’s vote
in favor of [Catalina] on Question 1 had anything to do with
Rotarex or the settlement. It is significant that the credible juror
declarations do not state when the improper use of the Rotarex
settlement occurred. . . . The Court cannot conclude that the
misuse of the Rotarex settlement happened before the first
question on negligence was answered. On this record, it is more
probable it did not. [¶] In addition, the Court heard the evidence
on negligence and in the Court’s view, the verdict would have
been the same on Question 1, even if a juror said Rotarex was
responsible because of the settlement at some point in their
deliberations. Accordingly, the Court cannot conclude that in the
absence of the juror and defense misconduct concerning
negligence, it is reasonably probable the jury would have reached
a different result.
However, as to the strict liability cause of action, the trial
court concluded, “It is easy to see how absent the misuse of the
Rotarex settlement, the verdict on this claim may have been

16
different. . . . Catalina’s affirmative defense that Rotarex was the
cause of the explosion was a complete defense to the failure to
warn cause of action. . . . However, there are no questions on the
special verdict form concerning this affirmative defense. If the
jurors found that Catalina prevailed on the affirmative defense,
they would have voted against the Plaintiffs on one of the strict
liability questions. That is exactly what the jury did. [¶] More
importantly, the affirmative defense would have necessarily
caused the jurors to discuss Rotarex’s responsibility when
answering the questions concerning strict liability. Unlike
Question 1 which had nothing to do with Rotarex and focused
entirely on Catalina’s conduct, the jurors had to consider Rotarex
on the strict liability issue and that it is most likely when any
improper use of [the] settlement occurred. It would explain the
decision to find for Catalina on Question 7. For purposes of this
motion, the combination of unrebutted presumed prejudice and
the misuse of the settlement on the 9-3 vote on Question 7, leads
the Court to conclude that a new trial is warranted on the strict
liability failure to warn cause of action.”
Catalina timely appealed.

DISCUSSION

A. Standard of Review
An order granting a new trial, including on grounds of
attorney or juror misconduct, is reviewed for an abuse of
discretion and “‘must be sustained on appeal unless the opposing
party demonstrates that no reasonable finder of fact could have
found for the movant on [the trial court’s] theory.’” (Lane v.
Hughes Aircraft Co. (2000) 22 Cal.4th 405, 409; accord, Nissan

17
Motor Acceptance Cases (2021) 63 Cal.App.5th 793, 811 (Nissan)
[evaluating trial court’s order granting new trial based on juror
misconduct for an abuse of discretion]; Whitlock v. Foster
Wheeler, LLC (2008) 160 Cal.App.4th 149, 159 (Whitlock) [“where
the trial court supplies a statement of reasons as required by
[Code of Civil Procedure] section 657, as the trial court did here,
the applicable standard of review is abuse of discretion”].)3
“The determination of a motion for a new trial rests so
completely within the court’s discretion that its action will not be
disturbed unless a manifest and unmistakable abuse of discretion
clearly appears. This is particularly true when the discretion is
exercised in favor of awarding a new trial, for this action does not
finally dispose of the matter.” (Jiminez v. Sears, Roebuck & Co.
(1971) 4 Cal.3d 379, 387; accord, Nissan, supra, 63 Cal.App.5th at
p. 811.) “[A]n appellant seeking to overturn a trial court’s
discretionary ruling [granting a motion for new trial] faces ‘more
than a daunting task [and] an uphill battle’ in demonstrating the
court exercised its discretion arbitrarily and unreasonably.”
(Nissan, at pp. 821-822 [affirming trial court’s grant of new trial
based on juror misconduct in a lawsuit against car dealerships
where juror failed to disclose she had been a defendant in
multiple civil actions and had family members with connections
to other car dealerships].)
“In evaluating the evidence, we must draw all inferences in
favor of the prevailing party and accept the trial court’s
resolution of conflicts in the evidence.” (Nissan, supra,
63 Cal.App.5th at p. 811; accord, Whitlock, supra,

3 It is undisputed the trial court stated its reasons for
granting the new trial motion in compliance with Code of Civil
Procedure section 657.

18
160 Cal.App.4th at p. 160 [“[I]t is the trial court that must assess
the credibility of affiants or declarants, and the trial court is
entitled to believe one over the other.”].) “We also must extend
deference to orders granting new trials because ‘“[t]he trial judge
is familiar with the evidence, witnesses and proceedings, and is
therefore in the best position to determine whether, in view of all
the circumstances, justice demands a retrial.”’” (Nissan, at
p. 821; accord, Whitlock, supra, 160 Cal.App.4th at p. 159.)
“[O]ur review for abuse of discretion extends to all aspects
of the trial court’s order granting a new trial, including the trial
court’s prejudice ruling.” (Whitlock, supra, 160 Cal.App.4th at
p. 160; accord, People v. Ault (2004) 33 Cal.4th 1250, 1255 (Ault)
[“[A]n order granting, as opposed to denying, a new trial is
reviewed liberally, particularly with regard to the trial court’s
finding that an error or irregularity in the original trial was
prejudicial.”].) Where juror misconduct is shown, “[t]his analysis
of prejudice ‘is different from, and indeed less tolerant than,’
normal harmless error analysis, because jury misconduct
threatens the structural integrity of the trial.” (McDonald v.
Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256,
266; accord, People v. Nesler (1997) 16 Cal.4th 561, 579.)

B. The Trial Court Did Not Abuse Its Discretion in Granting a
New Trial
1. The trial court did not abuse its discretion in finding
attorney misconduct
“Section 657, subdivision (1), of the Code of Civil Procedure
provides that a new trial may be granted for an ‘[irregularity] in
the proceedings of the court, jury or adverse party . . . by which
either party was prevented from having a fair trial.’ It is well

19
settled that misconduct of counsel is such an irregularity and a
ground for new trial.” (City of Los Angeles v. Decker (1977)
18 Cal.3d 860, 870; accord, Rayii v. Gatica (2013)
218 Cal.App.4th 1402, 1411 [“Attorney misconduct is a ground for
a new trial.”]; Garcia v. ConMed Corp. (2012) 204 Cal.App.4th
144, 148 [“Attorney misconduct is an irregularity in the
proceedings and a ground for a new trial.”].)
“[M]isconduct by counsel in closing argument in civil cases
can constitute prejudicial error entitling the aggrieved party to
reversal of the judgment and a new trial. ‘It is . . . well settled
that misconduct [by counsel] has often taken the form of
improper argument to the jury, such as by urging facts not
justified by the record or suggesting that the jury may resort to
speculation [citation]; by informing the jury that an injured party
has been compensated by a codefendant [citation]; and by
informing the jury of an offer of settlement and compromise.’”
(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 802 (Cassim);
accord, City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 870.)
“‘[T]here is no inherent requirement that the misconduct be of a
continuous nature’ and . . . a single instance of misconduct can
justify reversal.” (Cassim, at p. 803; accord, Hoffman v. Brandt
(1966) 65 Cal.2d 549, 551 & fn. 1, 555 [defense attorney’s single
comment during closing argument that a verdict for the plaintiff
would force the elderly defendant into a home for the indigent
was prejudicial misconduct, uncured by trial court’s equivocal
admonition the argument was not evidence].)
Evidence Code section 1152, subdivision (a), provides in
relevant part, “Evidence that a person has, in compromise . . . ,
furnished or offered or promised to furnish money or any other
thing . . . to another who has sustained . . . loss or damage . . . is

20
inadmissible to prove his or her liability for the loss or damage or
any part of it.” (See Diamond v. Reshko (2015) 239 Cal.App.4th
828, 843 [Evidence Code section 1152, subdivision (a), “codifies
the rule that evidence of a settlement agreement between a
plaintiff and one or more joint tortfeasors is not admissible to
prove the liability of the settling tortfeasor”].) However,
“evidence of a plaintiff's settlement with one or more defendants
is admissible at trial to prove witness bias and to prevent
collusion.” (Diamond, at p. 843; accord, Zelayeta v. Pacific
Greyhound Lines (1951) 104 Cal.App.2d 716, 729 [settlement
“evidence may be admissible to show bias or prejudice of an
adverse witness”].)
An attorney’s use of evidence of a settlement to argue for
liability where liability is disputed constitutes attorney
misconduct. (See Shepherd v. Walley (1972) 28 Cal.App.3d 1079,
1083-1084 [finding prejudicial misconduct where defense
attorney argued in closing a dismissed defendant’s settlement
with plaintiff “‘gives us a pretty good idea of who the plaintiff
thinks was responsible and liable’”]; Granville v. Parsons (1968)
259 Cal.App.2d 298, 302-304 [attorney misconduct prejudicial
where trial court ordered evidence of settlement could be used
only to argue witness credibility, but counsel in closing argued
“‘[t]hey know who was the guilty party in this accident because
you heard’” a prior defendant settled].) However, “[a]ttorney
misconduct can justify a new trial only if it is reasonably probable
that the party moving for a new trial would have obtained a more
favorable result absent the misconduct.” (Rayii v. Gatica, supra,
218 Cal.App.4th at p. 1411; accord, Cassim, supra, 33 Cal.4th at
pp. 801-802; Garcia v. ConMed Corp., supra, 204 Cal.App.4th at
p. 149 [“In order to justify a new trial [for attorney misconduct],

21
the party must demonstrate that the misconduct was
prejudicial.”].)
In evaluating whether attorney misconduct was prejudicial,
courts consider “‘(1) the nature and seriousness of the
misconduct; (2) the general atmosphere, including the judge’s
control of the trial; (3) the likelihood of actual prejudice on the
jury; and (4) the efficacy of objections or admonitions under all
the circumstances.’” (Bigler-Engler v. Breg, Inc. (2017)
7 Cal.App.5th 276, 296; accord, Martinez v. Department of
Transportation (2015) 238 Cal.App.4th 559, 568, 570 [numerous
references by counsel for defendant public agency during trial to
the jury’s self-interest as taxpayers, plaintiff’s loss of job to show
his laziness, and comparison of logo on plaintiff’s motorcycle to
Nazi imagery constituted prejudicial misconduct].)
Catalina contends the trial court abused its discretion in
granting plaintiffs’ new trial motion because Blum’s closing
argument did not rise to the level of attorney misconduct.
Catalina argues Blum’s statement during closing argument that
“the party [plaintiffs] settled with was the party that was
responsible” simply “ma[d]e a logical observation concerning
what the jury had heard.” Catalina also asserts the court’s in
limine ruling did not “limit how Catalina’s attorney could use the
evidence of the settlement to make his point that [Dr.] Stevick
should not be believed.” These contentions lack merit.
As discussed, the trial court ruled on plaintiffs’ motion in
limine that evidence of the settlement with Rotarex could only be
“used to impeach expert witnesses who have changed their
opinions if they offer evidence concerning why they changed their

22
opinion.”4 During Blum’s cross-examination of Dr. Stevick, Blum
properly used the settlement for this limited purpose. In his
closing argument, Blum likewise pointed out that Dr. Stevick
continued to bill plaintiffs for his expert opinions on the Rotarex
valve until one day after the plaintiffs and Rotarex settled,
arguing this could not be a coincidence. But when Blum’s
argument reached the apportionment of fault, he returned to the
subject of the settlement, stating, “So when we look at
percentages, the majority of the liability, the majority of the fault
goes to Rotarex. They’re the party who was responsible according
to the plaintiffs up until the moment they settled with Rotarex.
And then Dr. Stevick changed his mind after the settlement.”
(Italics added.) At this point Blum crossed the line from arguing
Dr. Stevick’s bias to improperly linking Rotarex’s settlement with
its responsibility for the explosion.
Blum continued by arguing Dr. Stevick’s “decision to
change his mind” did not “pass the smell test.” But this time
Blum invoked the settlement to explain why plaintiffs changed
their position, not Dr. Stevick. Blum argued plaintiffs’ attorneys’
action in then “calling up Dr. Romig” and focusing on Catalina
“increases the stench.” After further noting the timing of
Balaban calling Dr. Romig to “start on the Catalinas,” Blum
added, “The true fact is, the party they settled with was the party
that was responsible.” Balaban objected, and Blum offered to
“clean it up,” which the trial court allowed.
Blum clarified that the jury “shouldn’t conclude that from a
settlement Rotarex was responsible. That would be improper.”
However, the jury could conclude that the settlement was the

4 Plaintiffs do not contend the trial court erred in admitting
the settlement evidence for purposes of impeachment.

23
“motive” that caused Dr. Stevick to change his opinion. This
distinction was proper. But then Blum again crossed the line in
emphasizing that the settlement “was the motive that caused
Mr. Balaban to call up Dr. Romig and say let’s start working
against Catalina Cylinders.”
As plaintiffs contend, Blum’s argument—both before and
after the attempted “clean it up”—violated the court’s in limine
ruling because Blum’s use of the settlement to impugn the
motivation of plaintiffs was not properly limited to impeachment
of expert witnesses who changed their opinions, but instead
falsely implied plaintiffs held Catalina blameless until they
settled with Rotarex. To the extent Catalina contends Blum’s
argument involved no such implication, we defer to the trial
court’s finding to the contrary, drawing all inferences in favor of
the trial court’s ruling. (Nissan, supra, 63 Cal.App.5th at p. 929.)
Moreover, Blum’s attempt to remedy his improper
statement—that the party who settled with plaintiffs was
responsible—was not successful. Nor was the trial court’s
subsequent admonition to the jury not “to consider the settlement
to determine responsibility for any harm.” As shown by Lira’s
declaration, some of the jurors discussed during deliberations
that if plaintiffs settled with Rotarex, “it was because Rotarex
was admitting fault, so it’s not Catalina Cylinders’ fault, it’s
Rotarex’s fault.” Flores likewise said that during deliberations
“some of the jurors mentioned Rotarex and their settlement and
that Rotarex was responsible for this.” The trial court found
Lira’s declaration was the most specific and credible of the
declarations. And the Soto declaration submitted by Catalina
confirmed there were discussions of the Rotarex settlement in the

24
jury room, although she was not sure the timing of the
discussion.
Catalina fails to distinguish Granville v. Parsons, supra,
259 Cal.App.2d at pages 303-304, which is on all fours. There,
the Court of Appeal concluded the defense attorney committed
prejudicial misconduct after the trial court ordered a settlement
with a codefendant could be used only to argue witness
credibility, but counsel in closing argued, “‘They know who was
the guilty party in this accident because you heard that Mr. Short
was a defendant in this action and settlement.” (Ibid.) Tobler v.
Chapman (1973) 31 Cal.App.3d 568, relied on by Catalina, is
distinguishable. The Court of Appeal in Tobler affirmed the trial
court’s denial of plaintiffs’ claim of prejudicial attorney
misconduct based on defense counsel’s reference at trial to
plaintiffs’ dismissal of a codefendant midtrial. (Id. at pp. 577-
578.) But unlike here, the defense attorney in Tobler did not
reference plaintiffs’ settlement of claims, stating only that
“‘[w]hen the case was dismissed as to the [codefendants] this
morning, it then became my duty to discuss the damages with
you’” and “‘simply because there was a clear case of liability as to
the [dismissed codefendants] doesn’t mean that the plaintiff has a
liability case as to every defendant in this situation.’” (Id. at
p. 577.)
Catalina was entitled to impeach Dr. Stevick with reference
to the settlement agreement and to argue Rotarex was the party
responsible for plaintiffs’ injuries, but it had to walk a fine line to
separate the two arguments. Blum failed, linking his argument
Dr. Stevick changed his opinion based on the settlement and his
argument “the majority of the liability” rested with Rotarex. As
the trial court observed, “By tying the settlement with Rotarex to

25
Rotarex’s fault, defense counsel went beyond merely using the
settlement to impeach Dr. Stevick.”

2. The trial court did not abuse its discretion in finding
the attorney misconduct and juror misconduct were
prejudicial
“Juror misconduct is one of the specified grounds for
granting a new trial. (Code Civ. Proc., § 657, subd. 2.)”
(Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345; accord,
Whitlock, supra, 160 Cal.App.4th at p. 159.) “‘In ruling on a
request for a new trial based on jury misconduct, the trial court
must undertake a three-step inquiry. [Citation.] First, it must
determine whether the affidavits supporting the motion are
admissible. (Evid. Code, § 1150.) If the evidence is admissible,
the trial court must determine whether the facts establish
misconduct. [Citation.] Lastly, assuming misconduct, the trial
court must determine whether the misconduct was prejudicial.’”
(Whitlock, at p. 160; accord, Barboni, at p. 345.) If the reviewing
court concludes admissible evidence establishes juror misconduct,
prejudice is presumed unless rebutted. (People v. Marshall
(1990) 50 Cal.3d 907, 949; accord, People v. Honeycutt (1977)
20 Cal.3d 150, 156 [“It is well settled that a presumption of
prejudice arises from any juror misconduct.”]; Whitlock, at p. 162
[“‘A showing of [juror] misconduct creates a presumption of
prejudice.’”].)
The trial court must then determine whether, in light of the
entire trial record, the presumption is rebutted because there is
no substantial likelihood one or more jurors were impermissibly
influenced to the detriment of the party moving for a new trial.
(See Ault, supra, 33 Cal.4th at p. 1267 [affirming trial court’s

26
granting of new trial where juror in child molestation case shared
with other jurors story from outside source that a friend had been
molested by her father but acted normally]; see also In re
Manriquez (2018) 5 Cal.5th 785, 798 [finding juror concealment
of childhood abuse was not prejudicial].)
Catalina does not argue plaintiffs’ juror declarations were
inadmissible or that the declarations do not support the trial
court’s finding of juror misconduct. Catalina also acknowledges
the trial court’s finding of juror misconduct created a
presumption of prejudice to plaintiffs, shifting the burden to
Catalina to rebut the presumption. But Catalina contends it
rebutted the presumption by relying on the special verdict form,
in which the jury found Catalina’s warnings were adequate
(question 7). Catalina argues this finding did not implicate
Rotarex’s responsibility for the harm, and the jury did not reach
the special verdict form questions asking whether the lack of a
sufficient warning was a substantial factor in causing the harm
(question 8) or the comparative responsibility of Rotarex question
19).5 The trial court did not abuse its discretion in concluding

5 We reject plaintiffs’ contention Catalina forfeited its
argument the special verdict form rebutted the presumption of
prejudice by not citing the applicable standard of review or
providing an adequate factual analysis. Catalina has sufficiently
briefed the issue of prejudice on appeal. Plaintiffs also argue
Catalina failed to provide an adequate appellate record by
omitting the parties’ evidentiary objections to the declarations
submitted in support of and in opposition to plaintiffs’ new trial
motion. This contention lacks merit because neither party argues
the trial court abused its discretion in making its evidentiary
rulings.

27
otherwise. 6
Catalina argues there was no reason to assume “the jury
lacked the competence and basic understanding of its
responsibility to read, understand, and answer the discrete
question put to it” by the special verdict form. But the trial court
found the Lira and Flores declarations established that some
jurors failed to follow the trial court’s oral and written
instructions by relying on the settlement as evidence of Rotarex’s
liability and voicing that view to the other jurors during
deliberations. This fact supports the trial court’s finding that the
jurors who believed Rotarex was the responsible party because of
the settlement likely cast their votes against finding Catalina
liable on the strict liability cause of action by “vot[ing] against
the Plaintiffs on one of the strict liability questions.”
Question 7 was the first question that directly focused on
Catalina’s responsibility for the harm in the strict liability failure
to warn section of the verdict form. Question 3 asked simply
whether Catalina manufactured the subject cylinder.
Questions 4 through 6 focused on the cylinder, not whether

6 We consider the prejudicial impact of the attorney and
juror misconduct together because the test for whether attorney
misconduct was prejudicial asks both “the likelihood of actual
prejudice on the jury” and “the efficacy of objections or
admonitions under all the circumstances.” (Martinez v.
Department of Transportation, supra, 238 Cal.App.4th at p. 568.)
Because several jurors committed misconduct in making
improper use of the Rotarex settlement during deliberations
despite Blum’s attempt to “clean it up” and the trial court’s
instructions, the attorney and juror misconduct together weigh
heavily in favor of the trial court’s finding of prejudice.

28
Catalina or Rotarex was at fault (asking whether the cylinder
had potential known risks, whether the risks presented a
substantial danger to a user, and whether ordinary persons
would have recognized the risks). It was question 7 that focused
on Catalina, asking whether Catalina failed adequately to warn
of the potential risks. Although the jury could have answered
question 7 “yes,” then found Catalina not liable by voting “no” on
question 8 (that the lack of a warning was not a substantial
factor in causing harm), as plaintiffs’ counsel asserted at oral
argument, it is not reasonable to assume that jurors who had
gone “rogue” by improperly discussing Rotarex’s settlement
during deliberations then would have properly selected the most
applicable question on which to determine that Catalina had no
liability for the explosion. And as plaintiffs’ counsel pointed out,
questions 4 through 6 are silent as to what potential risk the
cylinder posed (that is, a risk from the cylinder itself or the
valve). If a juror believed the potential known risk was the
Rotarex valve attached to the cylinder, that juror may have voted
“no” on question 7, believing Catalina did not fail adequately to
warn about the dangerous condition created by the Rotarex valve,
which was responsible for the explosion as shown by Rotarex’s
settlement with plaintiffs. Moreover, if the jurors read and
understood question 7 to focus on the narrow question of the
adequacy of Catalina’s warning, there would have been no reason
for the jurors to discuss the Rotarex settlement prior to reaching
question 8, asking whether the lack of an adequate warning was
a substantial factor in causing harm to Roberto and Juan.
That nine jurors voted “no” in response to question 7
further supports the trial court’s prejudice finding. If even one of
the nine jurors voted no on question 7 to absolve Catalina of

29
liability based on his or her improper consideration of the
settlement, that vote would have been determinative of the
verdict. (See Weathers v. Kaiser Foundation Hospitals (1971)
5 Cal.3d 98, 110 [“Since the verdict was nine to three, the
disqualification for bias of any one of the majority jurors could
have resulted in a different verdict.”]; Whitlock, supra,
160 Cal.App.4th at p. 163 [juror misconduct in discussing
evidence outside the trial record likely influenced “the decisive
ninth vote in favor of the verdict”]; see also Martinez v.
Department of Transportation, supra, 238 Cal.App.4th at p. 570
[stating, in the context of overwhelming attorney misconduct, “[a]
jury prejudiced against a litigant and determined to find against
that litigant is not one whose judgment can be trusted”].)
Catalina contends further the trial court’s reasoning in
denying a new trial on negligence—that the jury did not reach
the question of comparative liability—should have likewise
caused the court to deny a new trial on the strict liability failure
to warn. However, the court’s reasons for denying a new trial on
negligence were not so limited. The court also observed that the
evidence supporting the negligence claim was relatively weak
compared to the strict liability failure to warn claim, such that it
was unlikely the result would have been different absent the
juror misconduct. Moreover, even if the court’s reasoning as to
the negligence claim was flawed, plaintiffs have not appealed the
court’s denial of a new trial on that cause of action, and that
ruling is not before us.
Catalina’s attempt to minimize the impact of the jurors’
improper consideration of the Rotarex settlement by arguing it
was unlikely to have influenced the jury’s deliberations runs
counter to “[t]he strong public policy favoring settlement

30
negotiations and the necessity of candor in conducting them”
embodied in Evidence Code section 1152. (C & K Engineering
Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 13; accord,
Heimlich v. Shivji (2019) 7 Cal.5th 350, 360 [“Parties should be
encouraged to make offers without fear that they will be treated
as an admission of either liability or the minimal value of a
claim.”].) As the trial court reasoned, the jury’s consideration of
the Rotarex settlement to determine Catalina’s liability was
precisely the danger the Legislature sought to ameliorate in
Evidence Code section 1152, and it “implicated the very policy
reason why settlement evidence is explosive and usually
excluded.”
The trial court therefore did not abuse its discretion in
determining on the entire trial court record that because of juror
misconduct there was a substantial likelihood that at least one
juror was impermissibly influenced to plaintiffs’ detriment.
(Ault, supra, 33 Cal.4th at p. 1261.)
Catalina’s reliance on Romo v. Ford Motor Co. (2002)
99 Cal.App.4th 1115 (Romo), cert. granted and judgment vacated
by Ford Motor Co. v. Romo (2003) 538 U.S. 1028, disapproved by
Ault, supra, 33 Cal.4th at p. 1272, is misplaced. In Romo, after
the jury returned a verdict for the plaintiffs, the trial court
granted a new trial on punitive damages based on juror
misconduct, where one juror stated during deliberations she had
viewed a television program on the defendants’ litigation strategy
for defective vehicles and another juror shared that she had a
dream in which a car manufactured by the defendant ran over
several children, and she repeatedly stated the jury must “save
the babies” from the defendant. (Romo, at pp. 1127-1129.)
Reviewing the issue of prejudice de novo, the Court of Appeal

31
reversed the trial court, reasoning prejudice was unlikely given
that “[j]urors ordinarily are presumed to have followed the court’s
instructions.” (Id. at p. 1131.) The Supreme Court in Ault,
supra, 33 Cal.4th 1250 disapproved of Romo’s application of a de
novo standard of review to the trial court’s grant of a new trial
based on juror misconduct, instead of the applicable deferential
abuse of discretion standard. (Ault, at p. 1272, fn. 15.) Moreover,
in Romo the jury foreperson admonished the jury to disregard the
juror’s description of the television program, and there was no
further discussion of the juror’s dream after the trial court
admonished the jury to decide the case solely on the law and facts
presented at trial. (Romo, at pp. 1133-1134.) Here, the jurors
who misused the settlement evidence did so after the court’s
admonishment to the contrary, and there is no evidence the
foreperson or any other juror admonished the jurors who
improperly considered the Rotarex settlement.7

7 Caldwell v. Paramount Unified School Dist. (1995)
41 Cal.App.4th 189, Bristow v. Ferguson (1981) 121 Cal.App.3d
823, and People ex rel. Department of Public Works v. Hunt (1969)
2 Cal.App.3d 158, relied on by Catalina, are distinguishable. In
all three cases the Courts of Appeal concluded the trial court had
abused its discretion in granting a new trial, finding no likelihood
of prejudice to the appellant. (Caldwell, at pp. 205-206; Bristow,
at p. 828; Hunt, at p. 172.) However, none of the cases involved
juror misconduct. In Caldwell, the Court of Appeal concluded in
an employment discrimination case the trial court erred in
instructing the jury on the burden-shifting framework of
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.
(Caldwell, at p. 206.) But the court found plaintiffs had not
shown a likelihood of prejudice because the jury found the
defendant had not discriminated against the plaintiff, so the jury
did not reach the questions on the special verdict form that would

32
 DISPOSITION

The order is affirmed. Plaintiffs are to recover their costs
on appeal.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

have been affected by the instructional error. (Ibid.) In Bristow,
the Court of Appeal observed the erroneous instruction identified
by the plaintiff was “plainly misleading, but in a direction
favoring plaintiff.” (Bristow, at p. 828.) Hunt was a
condemnation proceeding in which the jury awarded the
condemnees $35,000 for their property that had been taken.
(Hunt, at p. 160.) The trial court granted the condemnees’ motion
for a new trial based on surprise where the plaintiff’s expert
appraiser unexpectedly testified the condemned property was
worth only $27,200, but the condemnees were led to believe the
expert would value the property at $33,000 to $35,000. (Id. at
p. 162.) The Court of Appeal reversed, finding no likelihood of
prejudice where the jury awarded the condemnees the higher
value for the property. (Id. at p. 172.)

33