Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KC048778, Steven D. Blades, Judge.
Clive Alexander, in pro. per., for Plaintiff and Appellant.
Kinkle, Rodiger and Spriggs and Wesley D. Hellerud for Defendants and Respondents.
SUZUKAWA, J.
Plaintiff and appellant Clive Alexander sued respondents Rent-A-Fence, Ltd., and Mariano Francisco Martinez (collectively, defendant) for negligence after Martinez, driving a truck owned by Rent-A-Fence, hit plaintiff’s car. Plaintiff contended that as a result of the collision, he suffered debilitating disc injuries and chronic pain, incurred substantial medical expenses, and cannot return to work. The jury returned a modest verdict for plaintiff, awarding him $48,800 for past and future medical expenses, lost earnings, and noneconomic damages, but nothing for future medical expenses, lost earnings, and noneconomic damages.
Plaintiff moved for a new trial based on juror misconduct, asserting that during deliberations jurors improperly considered information from outside sources, including their own medical conditions and the effect of a plaintiff’s verdict on their automobile insurance rates. The trial court found that jurors had engaged in misconduct, but because it concluded that the misconduct was not prejudicial, it denied plaintiff’s new trial motion.
We conclude that the trial court did not abuse its discretion by finding that the jurors engaged in misconduct. Based on our review of the whole record, however, we conclude that the misconduct was prejudicial. Accordingly, we reverse for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
I. Pretrial and Trial Phases
Plaintiff worked as an ironworker from 1972 until 2004. On July 27, 2004, he was traveling on highway 60 when he was struck from behind by a truck owned by Rent-A-Fence and driven by Martinez. The force of the impact caused plaintiff’s seat to fall backward. Martinez admitted that he either had fallen asleep or was about to fall asleep when he hit plaintiff’s car.
Plaintiff filed a complaint for negligence on July 26, 2006. The case went to a jury trial on February 18, 2009. It was undisputed at trial that plaintiff suffers from a degenerative disc condition in his neck and low back; the parties disagreed, however, about the source and extent of plaintiff’s disc disease, his ability to work, and appropriate medical treatment following the accident.
Plaintiff’s evidence.
Plaintiff testified that the morning after the accident, he experienced muscle stiffness throughout his body. Within a week or two of the accident, he began to experience severe pain in his head, neck, and low back, which continued to the time of trial. He consulted many doctors, including several chiropractors and an orthopedic surgeon, but they were not able to provide him any lasting relief. Prior to the accident, plaintiff had never experienced any head, neck, or back pain, and he had not missed work due to an injury in more than 20 years. After the accident, however, he was not able to do any physical labor; as a result, he was terminated from his job approximately three weeks after the accident. He was not able to work subsequently, and at time of trial he was receiving federal Social Security disability benefits.
Plaintiff’s orthopedic surgeon, Dr. S. Andrew Schwartz, testified that plaintiff’s pain was caused by spinal disc bulges in his neck and low back. Dr. Schwartz said that two MRI’s of plaintiff’s spine showed several-millimeter bulges in plaintiff’s cervical spine and a seven-millimeter bulge in plaintiff’s lumbar spine. The bulges resulted from the July 2004 accident, not from a progressive degenerative process. Dr. Schwartz also testified that plaintiff’s past medical expenses, which exceeded $25,000, were reasonable, and that plaintiff’s future reasonable medical expenses were likely to exceed $75,000.
Dr. Peter Francis, a biomechanics expert, testified for plaintiff that when defendant’s truck hit plaintiff’s car, plaintiff experienced a change in velocity of between 12 and 14 miles per hour, which caused his seat back to partially collapse. The collapse and the rear end collision that caused it were consistent with significant mechanical stressors to the neck and low back region. Further, because plaintiff’s seat did not collapse totally, plaintiff rotated to the right, which twisted his spine and increased the likelihood of disc damage. As a result, Dr. Francis testified that plaintiff’s disc injury likely was caused by the accident.
Dr. David Fractor, an economist, testified that plaintiff’s past and future lost earnings, offset by his disability benefits, were $555,078. His calculation assumed that but for the accident, plaintiff would have continued to work as an ironworker until he was 65-1/2 years old.
Defendant’s evidence.
Dr. David Dainty, a biomechanical expert, testified as a witness for the defense. Based on plaintiff’s description of the accident, Dr. Dainty believed that plaintiff’s seat back had failed totally, dropping plaintiff into a horizontal position. Further, he believed that plaintiff’s change in velocity at the time of the accident was 9 to 11 miles per hour. Dr. Dainty testified that the accident therefore could not have caused plaintiff’s disc injuries: “When the seat fails you go back and what happens is you tend to ramp on the seat so that you’re getting your neck and back put into what’s called a tingent, where everything is being kind of pulled apart. You tend to get extended as opposed to compressed. And that is opposite to the mechanism that you see to create a traumatic or a one-event type of failure of the disk.” In Dr. Dainty’s opinion, plaintiff’s disc injuries were more consistent with degenerative changes associated with aging than with the accident.
Dr. Arthur Kreitenberg, an orthopedic surgeon, also testified for the defense. He said that plaintiff had degenerative disc disease in his neck and back before the accident. He agreed that plaintiff experienced pain as a result of the accident, but he attributed plaintiff’s pain to “sprains and strains.” He did not believe that surgery or other invasive treatment was warranted. He agreed with plaintiff’s counsel that plaintiff could no longer work as an ironworker, should not lift more than 15 to 20 pounds, should limit repetitive bending, and could not sit for prolonged periods of time. Dr. Kreitenberg’s testimony was consistent with that of Dr. Stephen Rothman, a defense neuroradiologist, who agreed that plaintiff’s MRI’s showed disc bulges, but said that the bulges likely were caused by aging, not trauma.
Ted Vavoulis, an economist, testified for the defense that if plaintiff were not able to return to work, his expected future lost earnings would be $447,704.
Jury deliberations and verdict. The jury began deliberating on February 25, 2009, and returned a special verdict for plaintiff on February 27, 2009. The verdict was as follows:
1. Was Mariano Martinez negligent?
Yes.
2. Was Mariano Martinez’s negligence asubstantial factor in causing harm to CliveAlexander?
Yes.
3. What are Clive Alexander’s damages?
a. Past economic loss
Lost earnings:
$11,000
Medical expenses:
$26,000
Property damage:
$ 800
Total past economic damages:
$37,800
b. Future economic loss
Lost earnings:
$0
Medical expenses:
$0
Total future economic damages:
$0
c. Past noneconomic loss, including physical pain andmental suffering:
$11,000
d. Future noneconomic loss, including physical painand mental suffering:
$0
4. Was Clive Alexander negligent?
No.
The trial court polled the jurors after the verdict. The verdict was unanimous as to questions 1, 2, and 4; the verdict was 9 to 3 as to questions 3(a)-(c), and 10 to 2 as to question 3(d). Judgment on the special verdict was entered on April 30, 2009.
II. Motion for New Trial
A. Plaintiff’s Motion
Plaintiff filed a notice of intent to move for a new trial on May 15, 2009, stating that the motion would be based on all of the statutory grounds. Plaintiff filed a memorandum of points and authorities on May 26, 2009, asserting as the sole basis for the motion “[m]isconduct of the jury [CCP Sect. 657(1)].” In support, plaintiff submitted the declaration of Juror Keith Condon, which stated in relevant part as follows:
“1. I served as a juror on the Alexander v. Rent a Fence case. [Italics added.]
“2. When we first went into the deliberations, we directly went over the verdict form that was provided for us.
“3. The first question, I believe, had something to do about whether significant harm was done. Right away the vote was 9-3. People did not understand what that question meant so I told them we were done. They said we were not and I explained to them they did not understand what the question meant.
“4. There were those people that felt Mr. Alexander should get reimbursed for some items but because they did not understand the first question we re-voted.
“5. Afterwards, it became 6-6. There were 6 people that didn’t want to give him anything and 4 that wanted to give him basically only the damages to his property.
“6. Then there were those that said they were involved in rear end collisions and only missed a day or two of work so Mr. Alexander must be lying about his injury. At least four people discussed their past experiences to show that since they were not severely hurt, Mr. Alexander couldn’t be as hurt as he said he was.
“7. At that point it was clear that it was 6/6 and that this case wasn’t going to go anywhere.
“8. We then asked for re-reading of testimony from one of the Doctors that had treated Mr. Alexander. After we heard the testimony, again it was 6/6, so again we were deadlocked.
“9. When we heard the testimony, I heard testimony I had missed or forgotten that strengthened Mr. Alexander’s case and the head juror heard testimony that he felt weakened his case.
“10. A debate took place between the head juror and I and no one else appeared to care. The overall consensus was that any pain Mr. Alexander felt was from his age combined with his former profession.
“11. At that point, we were deadlocked, we left the jury room and got further instructions from the Judge and were told to go home and think about the case.
“12. When we came back the next day, a lot of the people basically were willing to do whatever it took to get out of there and get back to work. They were frustrated they had to be there another day and were not getting paid by their employer.
“13. Then one of the jurors (short elderly lady with blond hair and a southern accent, eldest female on the panel) made a reference to insurance. She said ‘it’s not their insurance that’s going to go up it’s our insurance that will go up, we are going to pay for it, not them.’ Then some people nodded their heads. I don’t recall exactly how many or their identities.
“14. Again, one of the jurors, the one who acts as a trustee for an estate I believe, mentioned he was involved in a rear end accident and he only missed a day or two of work after the accident and that the damage to his car had been much worse. The juror implied that Mr. Alexander could not have been hurt nearly as bad as he claimed he was so therefore Mr. Alexander must be lying.
“15. When it came down to the next day, the head juror started to get very agitated, we started to take a vote, and I feel the other 10 people all changed their votes so they could get out of there. Comments were made by one of the jurors that we had to reach a decision because they wouldn’t let us not come to a decision.
“16. When it came to how much money they were going to give him, the head juror started making calculations and the other 10 people that were voting against Mr. Alexander all capitulated and agreed with the numbers.
“17. When the head juror got to the part about the medical bills, it was decided he should only get the past and not future. When I confronted him and asked why he should get all the past medicals when they didn’t believe he was really injured, he started yelling at me and Mr. Aoki. I told him if you think he’s lying then why do you want to give him past medical bills. He started using profanity saying, ‘I’m tired of this shit, I have to get back to work.’ At that point other jurors started also complaining, stating their employer was not paying them to be there.
“18. At that point, Mr. Aoki told the head juror he felt the head juror was trying to intimidate everyone else. He told him he is using intimidation [to] sway the other jurors to get out of there.”
B. Order Denying Motion for New Trial
The court denied the motion for new trial on June 25, 2009. After setting out the standard by which it was to evaluate plaintiff’s claim of juror misconduct, the court stated as follows:
“As to the first part of the inquiry, plaintiff submitted a declaration from juror Keith Condon. The declaration contained statements made by other jurors, and opined on their mental processes. However, defendant did not make any evidentiary objections to this declaration, nor did he submit counter-declarations. Therefore, the declaration of Condon is admissible to the extent the evidence relates to ‘sight, hearing, and other senses.’ It is not admissible to the extent it reflects on the jurors’ mental processes.
“As to the second part of the test, assuming the admissibility of the statements about personal experiences and insurance, these statements in the uncontroverted declaration satisfy the second part of the test because they do establish some degree of misconduct. It is clear that injecting personal experiences and references to insurance are improper. However, complaints that jurors were discouraged from asking questions, the foreperson argued with other jurors, or that many jurors wanted to rush into deciding the case do not amount to misconduct. Bandana Trading Co., Inc. v. Quality Infusion Care, Inc. (2008) 164 Cal.App.4th 1440.
“The third part of the inquiry is where plaintiff’s argument falls short. Plaintiff may be entitled to a new trial if he can prove that the juror misconduct caused him prejudice. ‘Prejudice exists if it is reasonably probable that a result more favorable to the complaining party would have been achieved in the absence of misconduct.’ Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 415. A close review of the Condon declaration makes it clear to the Court that the misconduct did not cause prejudice to plaintiff. On the contrary, [it] seems to have worked in his favor.
“For example, in paragraph 3, Condon states that when the jurors began deliberating they took an immediate vote of 9-3 about ‘significant harm.’ While Condon doesn’t say whether the vote was for plaintiff or defendant, he told the other jurors that ‘we were done.’ Therefore, the only logical conclusion is that the jury voted 9-3 in favor of defendant on the issue of causation (significant harm). That is the only way they could have ‘been done’ without having voted on damages.
“Some of the jurors seemed confused, so they voted again. This time the vote was 6-6. Three of the jurors apparently changed their votes in favor of plaintiff. However, in paragraph 5, Condon states that six jurors ‘didn’t want to give [plaintiff] anything, while 4 wanted to give him only the damages to his property.’ The property damage was $800. Thus, before any misconduct occurred, 10 of the jurors wanted to give plaintiff either nothing or no more than $800. The reason for this is set forth in paragraph 10 because ‘[t]he overall consensus [of the jurors] is that any pain Mr. Alexander felt was from his age combined with his former occupation.’ In other words, the pain was not caused by the accident.
“According to the Condon declaration, the acts of misconduct occurred after this second vote. In paragraph 15, Condon states that another vote was taken the following day and he felt that 10 people changed their votes so the jury could leave. This, of course, is speculative and invades the mental processes of the jurors. However, if it is true, the 10 jurors must have changed their votes to now favor plaintiff because the ultimate vote [in favor of] liability was 12-0 in favor of plaintiff.
“In paragraph 16, Condon goes on to state that the 10 jurors who ‘were voting against Mr. Alexander all capitulated and agreed with the numbers.’ This means that, once again, after the misconduct occurred, the 10 jurors who originally wanted plaintiff to have nothing or only his property damage now voted to give him $48,000 in damages, 61 times more than they originally did. The only conclusion from the timing of the events set forth in the Condon declaration is that the misconduct did not cause prejudice to plaintiff, but actually worked in his favor by a factor of 61.
“Condon goes on in paragraph 17 to describe a dispute he had with the foreperson over plaintiff’s request for future medical bills. However, this is consistent with the ‘consensus’ of the jurors, reached prior to any misconduct, that plaintiff’s injuries were caused by his age and former occupation. The fact that the jury ultimately awarded plaintiff $48,000 is quite contrary to this original jury consensus. Therefore, the only logical inference is that the misconduct benefited plaintiff and did not cause him prejudice because a majority of these 10 jurors changed their minds in favor of plaintiff.
“The Court presided over the trial in this matter. The Court also reviewed all the papers and closely scrutinized the Condon declaration. The Court has also conducted extensive research. Based upon a review of the entire record, the motion for new trial is DENIED.”
Plaintiff timely appealed from the judgment.
DISCUSSION
Plaintiff contends that the trial court correctly found that the jurors committed misconduct, but that it erred in finding that the misconduct was not prejudicial. He urges: (1) defendant failed to rebut the presumption of prejudice that arises upon a finding of juror misconduct; and (2) Juror Condon’s declaration suggests that but for the misconduct, the jury likely would have returned a much more substantial verdict in his favor. Defendant disagrees, contending that Condon’s declaration was inadmissible and failed to show misconduct by any juror; in any event, defendant says, any bias was not prejudicial. We consider these issues below.
I. Juror Misconduct Generally
Juror misconduct is one of the specified grounds for granting a new trial. (Code Civ. Proc., § 657, subd. 2.) “‘Trial by jury is an inviolate right and shall be secured to all....’ (Cal. Const., art. I, § 16.) The right to unbiased and unprejudiced jurors is an ‘“‘inseparable and inalienable part’”’ of the right to jury trial. (People v. Hughes (1961) 57 Cal.2d 89, 95.) The guarantee includes the right to 12 impartial jurors. (Smith v. Covell (1980) 100 Cal.App.3d 947, 955.)” (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 506 (Enyart).)
“Subject to the restrictions of Evidence Code section 1150, a juror’s affidavit may be used to impeach a verdict. Evidence Code section 1150 states in relevant part: ‘(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.’ Evidence Code ‘section 1150 properly distinguishes between “proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved ....”’ (Krouse v. Graham (1977) 19 Cal.3d 59, 80, italics added.)” (Enyart, supra, 76 Cal.App.4th at p. 506.)
“‘In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. [Citation.] First, it must determine whether the affidavits supporting the motion are admissible. (Evid. Code, § 1150.) If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial.’ (People v. Dorsey (1995) 34 Cal.App.4th 694, 703-704.)” (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160 (Whitlock).)
“Generally, the trial court’s ruling on a new trial motion is reviewed for an abuse of discretion. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.) To the extent that the trial court confronted conflicting declarations in denying the new trial motion, we affirm the trial court’s factual determinations, whether express or implied, if supported by substantial evidence. (Enyart v. City of Los Angeles[, supra, ] 76 Cal.App.4th 499, 507-508 & fn. 3; DeWit v. Glazier (1957) 149 Cal.App.2d 75, 82.) Nonetheless, ‘it is our duty to review all rulings and proceedings involving the merits or affecting the judgment as substantially affecting the rights of a party... including an order denying a new trial. In our review of such order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial.’ (City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 872, citation omitted.)” (Sandoval v. Los Angeles County Dept. of Public Social Services (2008) 169 Cal.App.4th 1167, 1176, fn. 6.)
II. Admissibility of Juror Condon’s Declaration
We begin with the admissibility of Juror Condon’s declaration. Defendant contends that the declaration is inadmissible because it does not suggest that the jury reached a chance verdict; according to defendant, Code of Civil Procedure section 657, subdivision (1), “specifically states that in order to use the affidavit or declaration of one of the jurors, APPELLANT must show that the jury resorted to the determination by chance.” Defendant is incorrect. While section 657 provides that a juror may establish a chance verdict by affidavit, it does not suggest that an affidavit is admissible only for that purpose. Accordingly, in connection with new trial motions, courts routinely receive juror declarations that describe misconduct of all kinds, not merely determinations by chance. (E.g., McDonald v. Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256 (McDonald) [new trial granted; juror declarations stated that juror had made statements in the nature of expert opinions concerning the placement of crossing gate “sensors”]; Jones v. Sieve (1988) 203 Cal.App.3d 359 [new trial granted; juror declaration stated that one juror described to the jury her own experience of preeclampsia, one of the subjects of the litigation]; Smith v. Covell, supra, 100 Cal.App.3d 947 (Covell) [new trial granted; juror declarations stated that jury foreman had communicated information about his own back injury to other jurors].)
Code of Civil Procedure section 657 provides in relevant part as follows: “The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶] 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.”
Defendant also contends that Condon’s declaration is not admissible because it contains “unidentified conversations with jurors that are hearsay in nature.” Again, defendant errs. Evidence Code section 1200, subdivision (a), defines “hearsay” as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Here, the juror statements described in Condon’s declaration are not hearsay because they were not offered for the truth of the matter stated-i.e., they were offered to establish that jurors claimed to have been in rear end collision, not that the jurors actually had been in such collisions.
Defendant contends finally that Condon’s declaration is not admissible because it contains statements that “go directly to the mental processes of the jurors in their decision making.” Defendant is correct that statements regarding jurors’ mental processes are not admissible (Evid. Code, § 1150, subd. (a)), but he errs in suggesting that Condon’s declaration is inadmissible for that reason. While the declaration does contain some assertions regarding the jurors’ mental processes, it also contains other admissible statements, and the trial court admitted Condon’s declaration only “to the extent the evidence relates to ‘sight, hearing, and other senses.’” Accordingly, the court did not err in admitting Condon’s declaration.
III. Did Misconduct Occur?
We next consider whether the trial court abused its discretion in finding that the conduct described in Condon’s declaration established misconduct. In the trial court and on appeal, plaintiff asserted that Condon’s declaration established that jurors committed misconduct by discussing their own experiences and discussing the effect of a plaintiff’s verdict on insurance premiums. Defendant presented no evidence to counter Condon’s declaration, but instead asserted that it did not establish misconduct because it did not demonstrate that any juror was “because of a general bias against the plaintiff [citation] irrevocably committed to vote against the plaintiff regardless of the facts that might emerge in the trial [citation].”
Since defendant did not submit counter-declarations, the acts alleged in plaintiff’s declaration are deemed established. (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 740, fn. 8; Tapia v. Barker (1984) 160 Cal.App.3d 761, 766 (Tapia).)
We conclude that the trial court did not abuse its discretion by finding that the comments described in Condon’s declaration constituted misconduct. “Presentation to or reception by a jury of new evidence from sources outside the trial evidence constitutes misconduct.” (McDonald, supra, 71 Cal.App.4th at p. 263.) This includes opinions about issues in the case that are not based on the evidence. (Ibid.) As our Supreme Court has explained, “It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors’ views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct.” (In re Malone (1996) 12 Cal.4th 935, 963.)
The court applied these principles to facts virtually indistinguishable from those in the present case in Covell, supra, 100 Cal.App.3d 947. There, defendant’s car hit plaintiff’s car while it was stopped at a crosswalk. The following day, plaintiff saw an orthopedic surgeon for pain in her neck, shoulders, and upper extremities, but she did not complain about any lower back pain. Six weeks later, however, she told her doctor that she was experiencing lower back pain; two months subsequently, she experienced a new pain associated with lifting china from a shelf. A myelogram revealed a herniated disc in plaintiff’s lower back. (Id. at p. 951.)
At trial, plaintiff’s doctors testified that both the neck and low back injuries resulted from the automobile accident, while defendant’s medical witnesses testified that the injuries were related to preexisting or subsequent injuries. By a vote of nine to three, the jury returned a verdict for plaintiff of $10,000. (Covell, supra, 100 Cal.App.3d at pp. 951-952.)
Plaintiff moved for a new trial, contending that the jury had committed several acts of misconduct. Specifically, the declarations of two jurors stated that during discussion of whether plaintiff should have complained of lower back pain shortly after the accident, the foreman had told the jury that when his back “‘went out’ it ‘went out right away’ and ‘hurt right away.’ He also told the other jurors when his back went out he could still go to work.” (Covell, supra, 100 Cal.App.3d at p. 952.)
The appellate court held that such conduct by the jury foreman “is clearly impermissible.” (Covell, supra, 100 Cal.App.3d at p. 952.) It explained that jurors “cannot, without violation of their oath, receive or communicate to fellow jurors information from sources outside the evidence in the case.... [¶]... [¶] These same acts of misconduct may be cited both as evidence of a concealed bias and as an objective fact likely to have improperly influenced the jury’s verdict. [Citation.] [¶] [The foreman], in concealing his biases on voir dire and in communicating his ‘evidence’... to his fellow jurors was committing acts of juror misconduct.” (Id. at p. 953.)
The court reached a similar result in Tapia, supra, 160 Cal.App.3d 761. There, defendant’s truck struck plaintiff’s car after running a red light. Following the accident, plaintiff experienced nausea, fainting, depression, headaches, memory loss, and seizures. As a result, he was not able to work. (Id. at p. 763.) By a verdict of 10 to 2, the jury returned a special verdict assessing plaintiff’s total damages at $12,706 and finding plaintiff 50 percent negligent.
The trial court denied plaintiff’s motion for new trial, but the Court of Appeal reversed, finding that the verdict was tainted by jury misconduct. (Tapia, supra, 160 Cal.App.3d at p. 763.) The court relied on the declarations of two jurors, who said, among other things, that one juror “stated that she was in an accident and the car looked a lot worse than Tapia’s and she wasn’t hurt” and that another said that returning a modest verdict for plaintiff would keep insurance rates down. (Id. at pp. 764-765.) The court said that “[t]he evidence of misconduct in the present case is abundant, ” noting that “[d]iscussions regarding the likelihood of high verdicts leading to high insurance rates are... improper” and “Juror P-’s remarks regarding her own automobile accident also appear to be an improper communication of information from a source outside the evidence in the case.” (Id. at p. 766; see also McDonald, supra, 71 Cal.App.4th 256 [reversing order denying motion for new trial where juror, a transportation consultant, told jury that defendant railroad company’s failure to install crossing sensors was not negligent because such sensors were not feasible]; Whitlock, supra, 160 Cal.App.4th at pp. 160-163 [affirming new trial order where juror introduced “evidence” based on his own experiences in the Navy].)
In the present case, as in Covell and Tapia, there is evidence that during deliberations jurors discussed their own experiences with back pain and their ability to return to work following automobile accidents. Specifically, according to Juror Condon, several jurors said that “they were involved in rear end collisions and only missed a day or two of work so Mr. Alexander must be lying about his injury. At least four people discussed their past experiences to show that since they were not severely hurt, Mr. Alexander couldn’t be as hurt as he said he was.” As in Covell and Tapia, these statements were improper because they constituted communications to fellow jurors of information from sources outside the evidence in the case. The juror’s comments about the effect of a substantial verdict on insurance rates also was improper. (Covell, supra, 100 Cal.App.3d at pp. 954-955; Tapia, supra, 160 Cal.App.3d at p. 766.) Although we acknowledge “the ‘fine line... between using one’s background in analyzing the evidence, which is appropriate, ... and injecting “an opinion explicitly based on specialized information obtained from outside sources, ” which... [is] misconduct’” (Whitlock, supra, 160 Cal.App.4th at p. 161, quoting People v. Steele (2002) 27 Cal.4th 1230, 1266), we cannot say that the trial court abused its discretion by finding that the jurors’ comments about their own automobile accidents and the effect of a large verdict on their insurance rates crossed that line and amounted to misconduct.
IV. Was the Misconduct Prejudicial?
Having concluded that jurors engaged in misconduct, we must address a final question: Did the misconduct prejudice plaintiff? “‘A showing of misconduct creates a presumption of prejudice....’ [Citation.] This presumption may be rebutted by ‘“an affirmative evidentiary showing that prejudice does not exist”’ based upon a consideration of such factors as ‘“the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.” [Citation.]’ (Ibid.)” (Whitlock, supra, 160 Cal.App.4th at p. 162.) Accordingly, where, as in the present case, a civil verdict is nine to three, reversal is required “‘[w]hen the misconduct in question supports a finding that there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant’s detriment.’ (People v. Marshall (1990) 50 Cal.3d 907, 951; accord, In re Malone, supra, 12 Cal.4th at p. 964.) The test is an objective one, calling for inquiry as to whether the misconduct ‘“is inherently likely to have influenced the juror.”’ (People v. Marshall, supra, at p. 951.) This analysis of prejudice ‘is different from, and indeed less tolerant than, ’ normal harmless error analysis, because jury misconduct threatens the structural integrity of the trial. (Ibid.)” (McDonald, supra, 71 Cal.App.4th at pp. 265-266.)
In Covell, supra, 100 Cal.App.3d 947 (discussed above, see section III, ante), the court held that a juror’s statements that his back hurt immediately when it “went out” and that he could work even when his back “went out” likely improperly influenced the jury’s verdict and, thus, required a new trial. The court noted that although the defendant had conceded liability, the jury awarded plaintiff only a token amount for her general damages. Further, the verdict “was the end product of a trial in which the question of whether Mrs. Smith’s injury to her lower back and the herniated disc were the result of the rear end collision was perhaps the most critical factual issue in the case. The defense doctors stated they did not believe the accident caused the herniated disc because Mrs. Smith had not complained of the low back pain within 72 hours after the accident. Thus the medical testimony in this case was in sharp conflict. The ‘evidence’ that Cox’s back hurt him immediately when it went out tended to support the defense doctors’ conclusions that the automobile collision could not have caused Mrs. Smith’s low back injury in that she did not complain of it within 48 to 72 hours. Further, Cox’s statement he was able to work when his back ‘went out’ supports the defense counsel’s insinuation that Mrs. Smith’s pain and disability were of psychological origin.” (Id. at pp. 953-954.)
The court continued: “Cox’s statement made to his fellow jurors interjected improper ‘evidence’ at this most critical point in the case. Had juror Cox’s communication been revealed in open court, evidence could possibly have been introduced to distinguish the injuries. By communicating his ‘evidence’ to the jurors outside the court, foreman Cox precluded the plaintiffs from testing it or making an answer....” (Covell, supra, 100 Cal.App.3d at p. 954.) Accordingly, there was a “reasonable probability of actual harm” requiring a new trial. (Id. at pp. 954, 960.)
The court reached a similar conclusion in McDonald, supra, 71 Cal.App.4th 256. There, a railroad brakeman employed by the defendant was severely injured when the truck on which he was working was hit by a line of railcars. (Id. at p. 260.) At trial, plaintiff asserted several theories of negligence, including one that defendant had provided an unsafe workplace by placing plaintiff on the tracks to guard a grade crossing, a condition that could have been obviated by maintaining crossing gates. (Ibid.) By a vote of nine to three, the jury found that defendant had not been negligent. (Id. at p. 261.)
Plaintiff moved for a new trial. In support, he tendered a juror declaration stating that another juror, who had identified himself as a career transportation consultant, said during discussions of whether defendant should have installed crossing gates at the grade crossing that such gates were impractical and drew a diagram explaining why. The discussion of the gates lasted three to five minutes. (McDonald, supra, 71 Cal.App.4that p. 262.) The trial court denied the new trial motion. (Id. at p. 263.)
The Court of Appeal reversed. It explained that the juror’s comments were “clearly misconduct” because they “derived from sources outside the evidence” and “rebutted a significant element of plaintiff’s proof.” (McDonald, supra, 71 Cal.App.4that p. 264.) Further, the presumption of prejudice that arose upon a finding of prejudice was unrebutted. It explained: “[W]e cannot agree with defendant’s characterization of the episode as ‘trivial.’ Juror Silverman’s exposition and demonstration may have been relatively brief, but they directly contradicted the trial evidence concerning a significant element of plaintiff's theory of unsafe workplace: the feasibility of crossing arms at the [grade]-crossing. The thrust of Silverman’s illustrated remarks, as attested to by himself as well as other jurors, was that plaintiff’s theory of how due care could have made his workplace safer was extrinsically unrealistic, impractical, and worthy of dismissal.” (Id. at p. 266.)
The court also rejected defendant’s contention that it is unlikely that the juror’s comments had any impact because the jurors had already tentatively aligned themselves nine to three in defendant’s favor when the juror addressed them. It explained: “We cannot be so confident. In the first place, Brown’s declaration was ambiguous as to the sequence and firmness of the jury’s divisions in relation to when Silverman spoke. In any event, as described Silverman’s remarks were strong and pertinent. They inherently carried a substantial probability of impact and influence.” (McDonald, supra, 71 Cal.App.4that p. 266.) Accordingly, “In light of the entire record, as well as the closeness of the verdict, we believe that there is a substantial likelihood that plaintiff was thereby harmed. [Citations.] The trial court should have granted plaintiff’s motion for new trial.” (Id. at p. 267.)
The present case is analogous to Covell and McDonald. Here, as in those cases, jurors discussed their own experiences during jury deliberations. Further, those discussions were relevant to key disputed factual issues. The most critical disputed issue in this case was whether plaintiff’s disc injuries resulted from the accident or some other source. The defense witnesses testified that plaintiff’s disc injuries were a result of his age and occupation, while plaintiff’s witnesses said that the disc injuries resulted from the accident. Defense counsel emphasized these themes in closing argument, reminding the jury that a defense expert had said “more likely than not that that bulge that was showing at that C3-4 level in the neck was not due to the motor vehicle accident, ” and asking, if the disc bulge was caused by the accident, “Why was plaintiff able to continue to work for three weeks after the accident?” The jurors’ “evidence” that they had only missed a few days of work after being involved in collisions tended to support the defense doctors’ conclusions that plaintiff was not as badly injured as he claimed and that his disc injuries were not caused by the accident. And, as in Covell, the juror’s statements were made outside the court, depriving plaintiff of the opportunity to distinguish his injuries from theirs. (Covell, supra, 100 Cal.App.3d at p. 954.) Accordingly, plaintiff’s evidence in support of his motion for new trial demonstrates a reasonable probability of actual harm, requiring a new trial.
The trial court concluded that the jury misconduct did not prejudice plaintiff because the award rendered after the acts of misconduct was more favorable to plaintiff than votes taken before the acts of misconduct. According to the court, after the second vote, “six jurors ‘didn’t want to give [plaintiff] anything, while 4 wanted to give him only the damages to his property.’ The property damage was $800. Thus, before any misconduct occurred, 10 of the jurors wanted to give plaintiff either nothing or no more than $800.” After the misconduct occurred, “the 10 jurors who originally wanted plaintiff to have nothing or only his property damage now voted to give him $48,000 in damages, 61 times more than they originally did.” Thus, the court said, “the misconduct did not cause prejudice to plaintiff, but actually worked in his favor by a factor of 61.”
The trial court’s analysis misapprehends the nature of the prejudice analysis. The relevant question, as demonstrated by Covell, Whitlock, and other cases, is not whether votes changed after improper comments were made, but rather whether at least one juror-including, but not limited to, the juror who made the improper comments-was impermissibly influenced to the plaintiff’s detriment. (McDonald, supra, 71 Cal.App.4th at pp. 265-266.) In the present case, it appears that at least four jurors were sufficiently influenced by their own experiences to have shared those experiences with other jurors. There thus is a reasonable likelihood that at least those four jurors were impermissibly influenced to plaintiff’s detriment. (See People v. Nesler (1997) 16 Cal.4th 561, 587 [“[Juror’s] interjection of extraneous evidence into the deliberations suggests that... she was unable to put aside both the information she had acquired outside of court and her impressions and opinions derived from that information, thus indicating a substantial likelihood of actual bias on her part.”].) Other jurors may also have been influenced not to change their votes in plaintiff’s favor. Further, as in McDonald, Condon’s declaration was “ambiguous as to the sequence and firmness of the jury’s divisions in relation to” when the four jurors spoke, and defendant did not introduce any other juror declarations that might have clarified the ambiguity. (McDonald, supra, 71 Cal.App.4th at p. 266.) Accordingly, the presumption of prejudice that arises upon a determination of juror misconduct remains unrebutted.
DISPOSITION
The judgment is reversed. Plaintiff shall recover his costs on appeal.
We concur: EPSTEIN, P.J. MANELLA, J.