4DCA Division 3 Oral Argument - 2026/03/19 - Mar 19, 2026

argument

4DCA Division 3 Oral Argument - 2026/03/19

California Fourth District Court of Appeal, Division Three 2h 3m 1 speaker 8 chapters transcribed 10 days ago official recording ↗

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What is the purpose of the panel change announced at the start of the oral argument?

Unknown 22:37

Ladies and gentlemen, uh there is a panel change,

Justice Delaney 22:38

I forgot to tell you, uh but it's really quick, so I don't step out too long if you're on the second one. Okay, thank you.

Mohammed Ghaz 28:31

All rise. Court of Appeal, Force of Pell District, Division III is now accepted.

Unknown 28:39

Morning. All right. Uh welcome to the Cruz Reynoso Courthouse. As my colleague Justice Delaney to my right likes to say, and to my left is Justice Scott. We have two cases on calendar for this morning. This panel will hear the first and then we'll have a panel change for the second. The first one is Kamal versus Burns. Please come forward.

Unknown 29:20

Mr. Lewis?

John Lewis 29:21

Morning honor job is on behalf of

Unknown 29:24

I looked at the wrong one. I'm sorry, you're the respondent. Okay. Uh Mr. Burns, do you intend to go first?

Don Burns 29:31

Uh Mr Justice, yes I but

Unknown 29:36

I'll ask you to state your appearance and then let me know how much if any time you would like to reserve for rebuttal, as well as I'll ask your colleague to do the same thing. Uh please have a seat. Uh And Mr. Sexton, are you planning on arguing immediately after Mr. Burns or how do you want to do that? Yes, Your Honor. Okay, and I'll ask you when you get up there to let me know also about time. This'll be a a test of my math skills which uh If any of you knew me in high school would know that's gonna be a challenge for me. So go ahead, whenever you're ready.

Don Burns 30:11

May it please the court. My name's Don Burns. I am appearing before you today in Procurr and uh with your consent I'll reserve two and a half minutes for rebuttal. Thank you for

Unknown 30:27

making the

Don Burns 30:28

math easy for Anna.

Unknown 30:30

Go ahead.

Don Burns 30:33

The Essential point I want to raise before the court is that there is a fundamental inconsistency in a special verdict that resulted from this jury trial. Uh I think the focus is uh initially on questions sixty and sixty-one in the special verdict. Uh Those answers by the jury. Um render Uh other elements of that special verdict inconsistent in such a way that they cannot be reconciled.

Unknown 31:17

Yeah.

Don Burns 31:18

Not at that not at trial and not post trial. Uh there was no way to draw from those answers uh in such a way that previous and subsequent answers could be reconciled. The essential answer is that Had concealed information been revealed? Two The Burns family. They would have behaved differently. and that that concealment uh by the real estate agent. was a substantial factor in causing harm. to the burns. Uh with that answer by the jury, it then becomes necessary to acknowledge that at no point in time was the agency relationship between Zaid Kamal And his father, the property owner. Or Maha Ishak, his supervising broker. Uh was never challenged, such that the recognition by the jury that the real estate agents concealed information that was a substantial factor should have resulted in a finding that the principal was responsible for that concealment and that the agent supervising broker had

Don Burns 32:57

responsibility for that concealment. That Other elements of the special verdict were answered uh in such a way and that is inconsistent with that concealment uh or with the misrepresentations that were found uh acknowledged by the jury in the special verdict. Uh the notion that The plaintiff's performance of the contract uh was perfected, can't be supported uh by the finding that they concealed essential information and that that concealment caused the uh buyers uh to uh be unaware of a defect, and that concealment cause resulted in harm to the buyer. Mm. has to be harmonized with the balance of the special verdict and that can't be done. We can throw out questions sixty and sixty one, but that's not appropriate.

Don Burns 34:16

So in order to get a consistent special verdict. uh we asked for a new trial uh post trial we asked that this be uh explored there was not an efficient way to reconcile this verdict post trial and so we are here at this point in time uh to seek in de novo review uh a new trial. And I want to spend just one moment uh on a notion that is I I've been here before. Expert testimony is a key to what we do in civil litigation. In this case it was a discretionary call by the trial court. that prevented uh the defense expert, uh man with fifty years of experience in construction in Orange County, from testifying about the effect of soil conditions on the structure.