## Facts

- Allison J. Dominguez was injured in a collision between Eloise Violet Pantalone’s automobile and Dominguez’s motorcycle.
- Dominguez sued Pantalone for negligence and sought damages for severe, permanent injuries, including hearing loss and brain injury.
- A jury found Pantalone’s negligence was a proximate cause of Dominguez’s injuries and returned a verdict exceeding $1.5 million.
- Pantalone moved for a new trial, asserting (1) insufficiency of the evidence and (2) prejudicial misconduct by Dominguez’s counsel, including efforts to elicit inadmissible opinion testimony.
- The trial court denied the new-trial motion, and Pantalone appealed from the judgment and the denial.

## Issues

1. Whether plaintiff’s counsel engaged in prejudicial misconduct—such as persistent attempts to place inadmissible matter before the jury or to inflame passion or prejudice—requiring reversal or a new trial.
2. Whether the trial court abused its discretion in denying a new trial on the ground of insufficiency of the evidence, given the court’s obligation to independently weigh evidence and assess credibility.

## Decision

- The Court of Appeal affirmed the judgment for Dominguez and affirmed the order denying Pantalone’s motion for a new trial.
- The court held that counsel’s conduct, even if at times improper, did not rise to prejudicial misconduct warranting a new trial, particularly in light of sustained objections and curative admonitions.
- The court held the trial court did not abuse its discretion in denying a new trial based on insufficiency of the evidence because it understood and applied the correct standard and concluded the verdict was supported by evidence of sufficient probative force.

## Legal Principles

- On a motion for new trial based on insufficiency of the evidence, the trial judge must independently weigh the evidence and judge the credibility of witnesses, exercising supervisory power over the verdict.
- “Insufficiency” in the new-trial context includes not only a total absence of evidence but also evidence the trial judge finds lacking in probative force to establish a necessary fact.
- Attorney misconduct warrants a new trial only when there is a willful or persistent effort to place clearly incompetent matter before the jury, or conduct designed to arouse resentment, prejudice, or passion, and the resulting harm cannot be cured by admonitions or instructions.
- Appellate review of an order denying a new trial is for abuse of discretion; an appellate court will not reweigh evidence if the record shows the trial court applied the proper standards.
- A large verdict does not alone show passion or prejudice where the evidence provides a rational basis for the damages awarded.

## Conclusion

The court upheld a substantial negligence verdict, concluding that any improprieties by plaintiff’s counsel were addressed through trial-court control and were not shown to have affected the outcome, and that the trial court properly exercised its discretion in independently evaluating the evidentiary support for the verdict and denying a new trial.


Dominguez v. Pantalone, 212 Cal. App. 3d 201, 260 Cal. Rptr. 431 (Ct. App. 1989)