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A prominent Southern California plaintiffs lawyer is getting another chance to argue that a client’s misrepresentations to an insurer were no worse than the judge in his case implicitly suggesting that jurors could lie to their employers. On Wednesday, the California Supreme Court voted to grant review in the case in which Santa Monica attorney Ian Herzog had won more than $9.8 million in damages at trial and nearly $1.2 million in lawyer fees in a policy suit against Allstate Insurance Co. Los Angeles’ Second District Court of Appeal had thrown out the trial court judgment in August, holding 2-1 that Herzog, a past president of Consumer Attorneys of California, had acted improperly at trial. What Herzog had done was imply that factual misrepresentations by his clients — Fareed and Rashiba Cassim –about a fire at their Palmdale home were no worse than L.A. County Superior Court Judge Harold Cherness letting jurors show up on off days, sign up for jury credit and go home without telling their employers. Cherness rejected defense counsel’s objections, but the Second District disagreed. “When counsel made reference to the fact that some of the jurors might be accused of cheating, there was no question he was letting the jurors know that the court had no objections to the procedure,” L.A. County Superior Court Judge Aurelio Munoz, who was sitting by designation, wrote for the Second District. In the petition for review, Evan Marshall, an associate in Herzog’s office, said every jury trial has “the potential” for arguments that can be construed as asking jurors to base their decisions on an improper basis. “This [appellate] opinion narrows the scope of permissible argument while dramatically enlarging what constitutes reversible error in cases where argument is subject to ‘implications’ beyond the scope of permissible argument,” Marshall wrote. “It requires trial courts to become watchdogs over all potential interpretations and implications, even when the trial court itself understands the argument in its literal sense as within the proper scope of argument.” Second District Justice Fred Woods Jr. had concurred in Munoz’s appellate ruling, but Justice Earl Johnson Jr. dissented, noting — as Marshall did in his petition — that Herzog’s allegedly objectionable trial comments were limited to less than two pages of a 15,000-page transcript. “The lawyer’s ‘remarks’ were temperate, not hot-headed, aimed at the jurors’ reason — not to arouse their passions,” Johnson wrote. Encino’s Horvitz & Levy, a respected and powerful appellate firm, represents Allstate. All of the justices except Ming Chin, who was absent, voted to grant review in Cassim v. Allstate Insurance Co., S109711. Also on Wednesday, the Supreme Court granted review in another insurance case in which the Second District in July had held that a homeowner’s all-risk insurance policy excluded coverage for landslide, weather conditions and third-party negligence. Frank and Carole Julian had been denied coverage by Hartford Underwriters Insurance Co. after their home was partially destroyed in 1998 by heavy rainfall that resulted in a slope failure. The case is Julian v. Hartford Underwriters Insurance Co., S109735.

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