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.”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.)
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.)
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