## Facts

- Leonel Arellano drove a pickup truck while intoxicated, sped through a stop sign at the intersection of Commonwealth Avenue and Juniper Street in San Diego, and struck Bun Bun Tran’s car broadside.
- The impact intruded into the driver’s side of Tran’s vehicle and caused Tran severe, permanent brain injuries.
- Tran (through a representative) sued Arellano for personal injuries; the City of San Diego was also involved in the litigation through cross-claims tied to the intersection conditions.
- At trial, Tran’s counsel made several challenged remarks during closing argument.
- Counsel recited the poem “First They Came for the Jews” and argued that if the jury accepted Tran as “vegetative” and did not support efforts to help him communicate, “the same insensitivity will be visited upon you and your loved ones, because society accepts what we tolerate.”
- Defense counsel did not object to the poem-based argument at the time it was made and did not request an admonition.
- Later in closing, Tran’s counsel asked the jury, “Would anyone . . . exchange life with Bun Tran?”
- Defense counsel objected on “Golden Rule” grounds; the trial court sustained the objection and struck the statement.
- Tran’s counsel also argued that Tran needed compensation and that Arellano was “the most appropriate and the best source,” adding that the jury could not “speculate . . . on funding,” which Arellano argued suggested insurance or other resources.
- Defense counsel did not object during that portion of closing, but moved the next day for a mistrial based on the funding/insurance suggestion.
- The trial court denied the mistrial motion.
- The jury returned a special verdict for Tran and awarded $23,370,747 in damages.
- Arellano appealed, challenging the judgment based on alleged attorney misconduct in closing, denial of mistrial/new trial relief, and related claims that the verdict reflected passion or prejudice.

## Issues

1. Did the trial court err by denying a mistrial (or other post-trial relief) based on plaintiff’s closing argument, including the “Golden Rule” remark, the poem-based appeal, and an alleged suggestion that insurance or other funds were available?
2. Were Arellano’s complaints about closing argument forfeited in whole or in part by the failure to make timely objections and request curative admonitions?
3. Did the size of the $23.37 million verdict, considered with the challenged arguments and rulings, require reversal or reduction as the product of passion or prejudice?

## Decision

- The Court of Appeal affirmed the judgment.
- The court held that objections to alleged misconduct in closing argument generally must be made when the statements occur so the trial judge can correct any harm; failure to object or seek an admonition forfeited several claims (including the poem-based argument).
- As to the “Would anyone . . . exchange life with Bun Tran?” remark, any error was addressed when the trial court sustained the objection and struck the statement, and the record did not show prejudice requiring reversal.
- As to the alleged insurance/funding suggestion, the court found no reversible error in the denial of mistrial, giving weight to the trial judge’s ability to evaluate the jury’s reaction and the overall context of the argument.
- The court rejected the claim that the verdict amount itself proved improper influence, noting the evidence of catastrophic, permanent brain injury and long-term consequences.

## Legal Principles

- Claims of attorney misconduct in closing argument are usually forfeited on appeal when the complaining party fails to make a timely objection and request that the jury be admonished; an exception may apply only where an admonition would clearly be ineffective.
- A “Golden Rule” argument—asking jurors to place themselves in a party’s position—is improper, but an immediate sustaining of an objection and striking of the remark can cure any harm absent a showing of likely prejudice.
- A mistrial is an extreme remedy; appellate review of the denial of mistrial/new trial relief is deferential, especially where the trial judge observed the argument and the jury firsthand.
- Reversal for misconduct or related trial error requires a showing of prejudice—i.e., a reasonable probability of a more favorable outcome absent the challenged conduct or ruling.
- A large damages award, standing alone, does not establish that the verdict resulted from passion or prejudice when substantial evidence supports the nature and extent of the injuries and resulting losses.

## Conclusion

Tran v. Arellano affirmed a $23.37 million judgment for a catastrophically brain-injured plaintiff after a drunk-driving collision, holding that many complaints about plaintiff’s closing argument were forfeited by the lack of timely objection, that the trial court’s corrective action on the one objected-to “Golden Rule” remark was sufficient, that the denial of a mistrial based on an alleged insurance suggestion was within the trial court’s discretion, and that the verdict size did not by itself show an improper verdict.


Tran v. Arellano, 2011 WL 1548344 (2011)