Daily Blast September 28, 2016

Last week, the Court of Appeal, Fourth District, Division One (San Diego), published its opinion in Regalado v. Callaghan (Sept. 22, 2016, D069647) ___ Cal.App.4th ___, briefly addressing the “Reptile” Theory. This case serves as a reminder of the importance of properly objecting to Reptile Theory arguments as soon as possible. The court in Regalado affirmed the judgment in favor of the plaintiff holding that although the attorney’s comments made during closing argument, such as telling the jury that its verdict had an impact on the community, were improper, opposing counsel failed to timely object to the remarks and failed to request a curative admonition. The court further noted that the comments were so brief that they were not prejudicial. (Slip opn., pp. 20-21.)

The plaintiff sued the defendants for negligence and premises liability as a result of injuries the plaintiff suffered when he installed a propane fueled pool heater on defendant Jeffrey M. Callaghan’s (“Callaghan”) property. (Slip opn., pp. 1-2.)  The jury awarded the plaintiff over $6,000,000 and apportioned 40 percent of fault to Callaghan. (Id. at p. 6.). Callaghan appealed arguing several different theories, including attorney misconduct. (Id. at p. 19.) Specifically, during closing argument, the plaintiff’s counsel introduced the “Reptile Theory” to the jury. The plaintiff’s counsel made comments such as “[y]our voice is really going to have an impact. . . .You are the conscience of the community. . . . You are going to make a decision what is right and what is wrong.”  After the plaintiff’s counsel had continued through a significant portion of his closing argument, Callahan’s counsel objected, but the trial court found the objection to be untimely. (Id. at pp. 19-20.)

The Court of Appeal affirmed the judgment. The appellate court commented that the attorney’s remarks were improper. “An attorney’s appeal in closing argument to the juror’s self-interest is improper and thus is misconduct because such arguments tend to undermine the jury’s impartiality.” (Slip opn., p. 20, quoting Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 796.) The Court of Appeal, however, determined that Callaghan failed to timely object to the remarks and failed to request a curative admonition. (Slip opn., p. 21.) As such, Callaghan waived his argument on appeal. (Ibid.)  

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