Farewell to Scott Adams, the beloved creator of "Dilbert"

We recently lost esteemed and beloved creative genius Scott Adams.  His “Dilbert“ comic strip skewered corporate America and it’s hypocrisy, personalities, buzzwords, and, most of all, the corporate mania for not paying for the scope of the work actually done by cubicle dwellers -- and, conversely, found humor in the the slice of employees who are allergic to actually producing anything. 

 

Who can forget the co-worker “Bottleneck," the clueless pointy–haired boss, and, of course the evil HR Director "Catbert." 

 

His keen observations will be sorely missed. 

 

 

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Follow up to post "Order Granting New Trial Upheld Where Plaintiff’s Counsel Improperly Violates Pre-Trial Orders by Arguing “Reptile Theory," etc."

 

 

This post is a follow-up to our prior post about attorney misconduct in violating a motion in limine preventing improper “reptile theory” and “golden roll“ arguments. (See blogger.com/blog/post/edit/5476224163973754209/4369127834107886388.)we 

 

Unfortunately, it is a frequent occurrence that trial counsel blatantly ignore pretrial rulings as to evidence and, indeed, court rulings in other contexts as well.  In circumstances of such attorney misconduct, it is important to realize there are various provisions that provide for consequences, including, but not limited to, both court-room specific rules and local rules as well as California's state-wide rules.  

 

One such provision is California Rules of Court, Rule 2.30, entitled "Sanctions for rules violations in civil cases."  This rule provides for monetary sanctions and states in full:

 

 

(a) Application

This sanctions rule applies to the rules in the California Rules of Court relating to general civil cases, unlawful detainer cases, probate proceedings, civil proceedings in the appellate division of the superior court, and small claims cases.

(Subd (a) amended effective January 1, 2004; adopted effective July 1, 2001.)

(b) Sanctions

In addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules. For the purposes of this rule, "person" means a party, a party's attorney, a witness, and an insurer or any other individual or entity whose consent is necessary for the disposition of the case. If a failure to comply with an applicable rule is the responsibility of counsel and not of the party, any penalty must be imposed on counsel and must not adversely affect the party's cause of action or defense thereto.

(Subd (b) amended effective January 1, 2007; adopted as untitled subdivision effective January 1, 1985; amended and relettered effective July 1, 2001; previously amended effective January 1, 1994, and January 1, 2004.)

(c) Notice and procedure

Sanctions must not be imposed under this rule except on noticed motion by the party seeking sanctions or on the court's own motion after the court has provided notice and an opportunity to be heard. A party's motion for sanctions must (1) state the applicable rule that has been violated, (2) describe the specific conduct that is alleged to have violated the rule, and (3) identify the attorney, law firm, party, witness, or other person against whom sanctions are sought. The court on its own motion may issue an order to show cause that must (1) state the applicable rule that has been violated, (2) describe the specific conduct that appears to have violated the rule, and (3) direct the attorney, law firm, party, witness, or other person to show cause why sanctions should not be imposed against them for violation of the rule.

(Subd (c) amended effective January 1, 2007; adopted effective July 1, 2001; previously amended effective January 1, 2004.)

(d) Award of expenses

In addition to the sanctions awardable under (b), the court may order the person who has violated an applicable rule to pay to the party aggrieved by the violation that party's reasonable expenses, including reasonable attorney's fees and costs, incurred in connection with the motion for sanctions or the order to show cause.

(Subd (d) amended effective January 1, 2007; adopted effective July 1, 2001; previously amended effective January 1, 2004.)

(e) Order

An order imposing sanctions must be in writing and must recite in detail the conduct or circumstances justifying the order.

 

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New Case Law: Order Granting New Trial Upheld Where Plaintiff’s Counsel Improperly Violates Pre-Trial Orders by Arguing “Reptile Theory," etc.

 

In an opinion written by Justice Codrington, the Fourth Appellate District, Division Two, affirmed the grant of a motion for new trial by San Bernardino County Superior Court Judge Michael A. Sachs. (Allen v. Patel (December 23, 2025) E082051.)  The appellate opinion explained the issue involved whether the trial court properly granted a motion for new trial based upon the alleged misconduct of plaintiff and appellant’s counsel Michael K. Blue:

While plaintiff and appellant Brenda Lee Allen and her family were moving out of Ontario Airport Inn Hotel after an extended stay, she and the hotel owner, defendant and respondent Anil Bhula Patel, and the hotel manager, Luis Mejia, engaged in an altercation. Allen alleges that during the incident, Patel attacked and injured her. Allen brought a personal injury lawsuit against Patel and his company, DH Hotel Investments, Inc. (DH) (collectively referred to as defendant).  A jury awarded Allen over one million dollars in compensatory damages, and the court declared a mistrial at the bifurcated trial on her punitive damages claim, and thereafter granted defendant’s motion for a new trial (MNT). Allen appeals. Allen contends the trial court abused its discretion by granting the MNT based on attorney misconduct. . . .  We affirm the trial court’s order granting a new trial of phase one of the trial as to liability and compensatory damages. . . .  The appellate court also found the trial court had properly granted a new trial based upon misconduct by Mr. Blue in making an argument to the jury which improperly speculated as to discussions between defendant and defense counsel, speculating that defense counsel told his client he would essentially get away with his bad conduct. (Id., p. 2.

The alleged misconduct involved claims of injury not previously disclosed:

During attorney Michael K. Blue’s opening statement on behalf of Allen, he told the jury that it would hear from Allen’s doctors and that there would be testimony that, after her altercation with Patel at the Hotel, she suffered from incontinence and PTSD, which she will suffer from for the rest of her life. Blue described in detail Allen’s incontinence. Blue requested the jury to award Allen $6,000,000 in compensatory damages. After Blue completed his opening statement, defendant moved for a mistrial on the grounds that Blue raised new and argumentative issues that were never disclosed before. Defendant argued that Blue improperly stated during his opening statement that Allen was immunocompromised and suffered from a bone disease. Defendant asserted that this was improper because Allen’s attorneys would not be providing any medical testimony by any designated medical physician, establishing these diagnoses or prognoses. The trial court responded that Allen’s treating physician could testify regarding his own diagnoses but could not testify regarding other diagnoses or causation unless designated as an expert witness. Will we tolerate that? That decision is going to be your decision in just a few moments. (Id., pp. 6-7.)

Patel moved for a new trial under Code of Civil Procedure section 657,2 based on 1) irregularity in proceedings which prevented a fair trial, 2) accident or surprise, 3) excessive damages, and/or 4) insufficiency of evidence or the verdict is against the law.  The Lee opinion summarized the trial court’s grant of a motion for new trial as follows:

After hearing oral argument on July 19, 2023, on Patel’s MNT, the trial court ordered a new trial. During the hearing, the trial court stated in detail its reasons. The court found that Allen’s evidence was tainted by Blue’s misconduct. The court explained that it had granted several motions in limine (MIL) orders, which Blue violated. The trial court expressed concerns about Allen introducing evidence of bowel and G.I. issues, which Allen claimed were caused by the Hotel incident. The trial court asked Blue if there would be evidence offered by an expert showing causation linking Allen’s GI claims with the Hotel incident, and Blue told the court, yes, which was false. (Id., p. 8.)

The trial court also found that plaintiff’s counsel had violated an in limine order made at the outset of trial which prohibited both “golden rule” and “reptile theory” arguments. The trial court also found, inter alia, that during the first phase of the bifurcated trial, plaintiff’s counsel had improperly asked the jury to award punitive damages.

The Court of Appeal affirmed, finding that plaintiff had not met her burden of showing any error by the trial court in granting a motion for new trial:

We conclude there was substantial evidence in the record supporting the trial court’s findings that Blue made knowingly false and misleading statements and elicited inadmissible, prejudicial, and highly inflammatory testimony in violation of the court’s orders and warnings not to introduce evidence of Allen’s incontinence unless Blue was able to introduce expert witness testimony establishing a medical diagnosis of her condition and that it was caused by the Hotel incident. (Id., p. 25.)

As to golden rule arguments, the Fourth District found Mr. Blue had violated the trial court’s in limine order “by suggesting that when considering the amount of fair value compensation Allen should receive for her losses, the jurors should imagine what it would be like to be forced to accept the loss of ’every single thing that matters' to them" in exchange for a monetary award. (Id., p. 29.)

As to so-called “reptile theory,” the appellate court concluded that “violation of the [prohibiton against] reptile theory occurs when counsel asks jurors to base their decisions on concerns about their own safety and the safety of the community rather than the applicable standard of care,” citing to Regalado v. Callaghan (2016) 3 Cal. App. 5th 582, at 599.).  Mr. Blue patently violated the order precluding such by virtue of the following argument to the jury, as summarized by the Allen court:

Blue began his opening statement by stating, “I’m scared. I couldn’t sleep last night because I’m scared. It’s an enormous obligation to represent somebody who cannot represent themselves. . . . I’m shaking. My knees are shaking. . . . It’s a privilege of a lifetime. . . when you believe in somebody. My fear is that I have not done a good enough job to represent that person the way that person deserved to be represented that I have failed. And at some point I’m going to hand this case . . . to you for you to take this case for me. And that scares me to death.”
Blue then told the jury it had “an opportunity to make a difference. We go through life, try to set an example, try and do the right thing. Maybe somebody will see. Maybe our children will see. Maybe our students will see. But seldom do we have an opportunity to defend our community, to champion our community, to stand as the last bastion for what we will tolerate for our community. Will we tolerate men coming into a room with a vulnerable woman, the most vulnerable of us and put their hands on her? Will we tolerate that? That decision is going to be your decision in just a few moments. (Id., p. 30.)

The appellate court also found the trial court had properly granted a new trial based upon misconduct by Mr. Blue in making an argument to the jury which improperly speculated as to discussions between defendant and defense counsel, Mr. Blue telling the jury that defense counsel may have told defendant they would essentially get away with his bad conduct. (Id., p. 33.)

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Welcome to 2026 - The Year of America 250

 

 Happy New Year 2026

 

 

As we welcome 2026, Best Wishes for the New Year.  This should be an exciting, even disruptive year:  American military and technological leadership is back, and our "America 250 Celebration" begins now.  
 
As for legal predictions, I note that conventional wisdom is that the United States Supreme Court will limit the President's use of tariffs under an "emergency” rationale, but it may not matter because the President has other powers in this regard.  
 
This sounds somewhat likely, but the real answer, of course, is that no one really knows what will happen.  One thing I have learned is that those who appear to know the outcome of litigation beforehand really don't, and that virtually all participants in the legal system underestimate the risks of an adverse outcome.  But looking at this philosophically, if litigants were to accurately gauge the risks of litigation, there would be far less of it and far less work for legal professionals.

 

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Fear not: for, behold, I bring you good tidings of great joy, which shall be to all people

 

Our family wishes you a very merry, peaceful, and spiritually meaningful Christmas and best wishes for 2026.

As The Gospel According to Luke, Chapter Two, tells us:

And, lo, the angel of the Lord came upon them, and the glory of the Lord shone round about them: and they were sore afraid.
And the angel said unto them, 

Fear not: for, behold, I bring you good tidings of great joy, which shall be to all people.

 
We will return to posting after the 12 days of Christmas.

 

 
 

California Supreme Court Update for 2026

 

 

 California Supreme Court 2026

 

With the next year approaching, we should take a look at upcoming issues before the California Supreme Court in 2026.  Upcoming civil cases are summarized at the Supreme Court's website at:

 

https://supreme.courts.ca.gov/sites/default/files/supremecourt/default/2025-12/pendingissues-civil%20-%20121225_0.pdf 

 

What is interesting is the lack of blockbuster cases, at least as opposed to past years.  Of course, there are some issues of consequence, such as an insurance coverage case about insurer liability for water damage when water enters the building following wind damage and occurs during a roof repair. (11640 Woodbridge Condominium Homeowners’ Assn. v. Farmers Ins. Exchange
S290750.)

 

However, the scope of issues before the California Supreme Court pale in comparison to Federal Court cases involving California.  Chief among these is the Department of Justice' challenge to California's Congressional redistricting plan on Constitutional grounds:

 

https://www.justice.gov/opa/media/1417291/dl?inline=&utm_medium=email&utm_source=govdelivery

 

But in California there appear to be no cases of such historic proportion.  Perhaps this is because California is a one-party state.  The Democrat party has the lion's share of influence, it not outright supremacy, in all three branches of government, making it unlikely the state's highest court will be called upon to decide crucial issues.

 

 

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