Opinion
NOT TO BE PUBLISHED
APPEAL from judgment of the Superior Court of Los Angeles County, No. BC364899, John P. Shook, Judge.
McNicholas & McNicholas, Matthew S. McNicholas, M. Benjamin Valerio; Esner & Chang and Stuart B. Esner for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Claudia McGee Henry, Assistant City Attorney, and Gregory P. Orland, Deputy City Attorney, for Defendant and Respondent.
KITCHING, J.
INTRODUCTION
Plaintiff and appellant Claudia Gray appeals a judgment in favor of defendant and respondent City of Los Angeles following a jury trial. The jury rendered a verdict in favor of the city on plaintiff’s cause of action for retaliation in violation of the California Fair Employment and Housing Act (Gov. Code § 12900 et seq.) (FEHA). Plaintiff contends that the trial court erroneously denied her motion for new trial because there was jury misconduct and an irregularity in the proceedings of the jury. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is a police officer employed by the Los Angeles Police Department (LAPD). She alleged in her complaint that the City of Los Angeles retaliated against her for reporting and speaking out against wrongful and discriminatory treatment based on gender by taking certain adverse employment actions against her.
In her complaint, plaintiff also set forth causes of action for racial discrimination in violation of FEHA and gender discrimination in violation of FEHA, and named as defendants the LAPD, Captain Dennis Cremins, and Captain Deborah McCarthy. However, her racial and gender discrimination claims and her claims against the LAPD, Cremins and McCarthy were apparently not pursued at trial and are not at issue in this appeal.
Plaintiff’s retaliation cause of action was tried before a jury. The trial court instructed the jury that an essential element of plaintiff’s cause of action was “that Claudia Gray’s report of discrimination and/or retaliation was a motivating reason for the City of Los Angeles’s conduct....” It further instructed the jury: “A motivating reason is a reason that contributed to the decision to take certain action, even though other reasons also may have contributed to the decision.” This instruction was based on California Civil Jury Instructions (CACI) No. 2507.
The jury returned a special verdict of nine to three against plaintiff. The dispositive question was Question No. 3, which stated: “Was Claudia Gray’s reporting discrimination and/or retaliation a motivating reason for the City of Los Angeles’ conduct?” The jury answered this question by stating, “No.”
Plaintiff then filed a motion for new trial on the grounds that there was misconduct of the jury and an irregularity in the proceedings of the jury. In support of her motion, plaintiff filed the declarations of jurors Julie Murakami (No. 8) and Karen Sequeira (No. 6). Plaintiff and her counsel were not contacted by Murakami and Sequeira regarding the alleged jury misconduct and irregularity of the proceedings until after the verdict was rendered.
Plaintiff also argued in her motion that there was insufficient evidence to support the verdict. She does not make that argument on appeal.
Murakami stated that Juror Nos. 1, 3, 4 and 7 repeatedly stated during jury deliberations that, in order to answer Question No. 3 affirmatively, “the law required them to find that retaliation was at least 50.1% of the motivating reason for the City’s adverse actions....” She further stated: “In response, I [Murakami] specifically stated out loud for all jurors to hear, including Jurors 1, 3, 4, and 7, that their statements about the law were wrong, that the Judge instructed us that retaliation only needed to be ‘a’ motivating reason, not ‘the’ motivating reason and not ‘50.1% of the motivating reason.’ ”
Sequeira stated: “When Question No. 3 on the Special Verdict form was discussed during deliberations in the jury room, more than three female jurors (excluding Jurors 2, 8 and me) specifically stated out loud for all jurors to hear that in order to answer Question 3 ‘yes, ’ the law required them to find that retaliation was more than 50% of the motivating reason for the City’s adverse actions.... All of these statements were made out loud for all jurors to hear during the deliberations in the jury room. [¶] In response to the statements made by the female jurors, Juror [No.] 8 specifically stated out loud for all jurors to hear (including the female jurors as indicated above) that their statements about the law were wrong, that the Judge instructed us that retaliation only needed to be ‘a’ motivating reason, not ‘the’ motivating reason, not the ‘only’ motivating reason and not more than ‘50% of the motivating reason.’ ”
In addition, both Murakami and Sequeira stated: “During deliberations, Juror [No.] 9 did not understand what was going on. He stated out loud to me and many jurors throughout the process, ‘how should I vote?’ ‘what are we doing?’... He never once during the entire process offered any discussion of any of the evidence.”
In opposition to plaintiff’s motion for new trial, defendant City of Los Angeles filed declarations by jurors William Ingino (No. 12), Subiru Ross (No. 11), Valarie Boze (No. 7), Angelica Harris (No. 5), Dina Ramsey (No. 1), and Alejandra Halaby (No. 3). These declarations tell a different story.
Ross, Harris, Ramsey and Halaby stated that they did not recall any discussions regarding a requirement that plaintiff must show that retaliation was more than 50 percent or 50.1 percent of “the motivating reason” for defendant’s adverse employment actions. Ross stated: “During deliberations, I do not recall any juror stating that retaliation had to be 50% of the motivating reason for the City of Los Angeles’ conduct.”
Harris stated: “I recall that during [deliberations], a female juror who voted ‘yes’ [on Question No. 3] stated that we only needed to believe one percent of the plaintiff’s case in order to answer ‘yes’ to Question #3. I stated that the plaintiff’s case needed to be 51% believable, or more believable to me than the defendant’s case, in order for me to answer ‘yes’ to Question #3.... I never stated that jurors had to find that 51% of the motivating reason for the actions of the defendant was based on discrimination or retaliation in order to answer ‘yes’ to Question #3.”
Ramsey stated: “I recall that during the deliberations there was some discussion regarding which side was more believable and one of the jurors mentioned that they felt it was 50/50. This is the only discussion I recall in which someone mentioned fifty percent during deliberations.”
Halaby stated: “During deliberations, I do not recall any juror stating that retaliation had to be 50% of the motivating reason for the City of Los Angeles’ conduct. I do not recall any discussion of any percentage.”
Ingino and Boze recalled some discussion of the issue, though the nature of the discussion is unclear. Ingino stated: “During [deliberations], one of the jurors mentioned the phrase 50.1%. I do not recall what this comment was in regard to, only the phrase 50.1%. I do not recall any ensuing discussion regarding this comment or any other discussion about 50% or 50.1% during deliberations.” Boze stated that Juror No. 8 “brought up at one point that it only has to be 50.1% to be retaliation.... I do not recall a lengthy discussion regarding this remark. I do not recall any further discussions in the jury room regarding fifty percent of anything.”
With respect to Juror No. 9, Ross stated that she did not recall that juror asking any other juror how he should vote or expressing any confusion about the questions in the special verdict. According to Ross, Juror No. 9 “spoke at length to the entire jury panel regarding his opinions in this case.”
The trial court denied plaintiff’s motion for new trial. At the hearing on the motion, the trial court stated that it had reviewed all of the declarations submitted by both sides. The trial court, however, did not make express findings regarding the credibility of the witnesses for both sides, nor any specific findings regarding jury misconduct or an irregularity of the proceedings of the jury. Rather, the trial court stated: “I think there was sufficient evidence submitted to this jury panel during the course of the trial for them to reach a verdict that they have done, and I don’t think that there is enough here for the court to set it aside.”
After her motion for new trial was denied, plaintiff appealed the judgment.
“[N]o appeal lies from an order denying a motion for new trial. Such proceedings are reviewable on the appeal from the judgment.” (Sumpter v. Matteson (2008) 158 Cal.App.4th 928, 930, fn. 1.)
CONTENTIONS
Plaintiff argues that the judgment should be reversed with directions to the trial court to conduct a new trial because there was misconduct of the jury and an irregularity in the proceedings of the jury. She contends the jury failed to follow CACI 2507 and that certain jurors erroneously “re-instructed” the jury regarding the law. In particular, plaintiff contends that Juror Nos. 1, 3, 4 and 7 stated that in order to prevail, plaintiff needed to prove that retaliation was at least 50.1% of the motivating reason for defendant’s adverse actions.
Plaintiff further argues that Juror No. 9 did not participate in deliberations and was confused. According to plaintiff, Juror No. 9’s confusion “contributes to the overall misconduct” of the jury, though plaintiff does not contend that this confusion “alone would justify a new trial.”
DISCUSSION
1. Statutory Basis for a Motion for New Trial
The trial court can vacate a verdict and grant a new trial if there is “[m]isconduct of the jury” or an “[i]rregularity in the proceedings of the... jury”. (Code Civ. Proc., § 657.) “ ‘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. [Citation.] 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.’ ” (Sierra View Local Health Care Dist. v. Sierra View Medical Plaza Associates (2005) 126 Cal.App.4th 478, 484.)
An “irregularity of the proceedings” is a catch-all phrase referring to any act that (1) violates the right of a party to a fair trial and (2) which a party “cannot fully present by exceptions taken during the progress of the trial, and which must therefore appear by affidavits.” (Gay v. Torrance (1904) 145 Cal. 144, 149; accord Gibbons v. Los Angeles Biltmore Hotel (1963) 217 Cal.App.2d 782, 791.) Jury misconduct during deliberations that is brought to the attention of a party after the verdict is rendered constitutes an “irregularity of the proceedings” of the jury for purposes of a motion for new trial.
2. Standards of Review
We review the trial court’s rulings on admissibility of evidence under the abuse of discretion standard of review. (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008). However, the trial court did not rule on defendant’s objections to Murakami’s and Sequiera’s declarations. Accordingly, we review defendant’s objections de novo. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.)
In considering the second stage of the analysis—whether the facts in plaintiff’s affidavits establish misconduct—“ ‘[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.’ ” (People v. Collins (2010) 49 Cal.4th 175, 242 (Collins).) “ ‘ “When a finding of fact is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [¶] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” ’ ” (Spencer v. Marshall (2008) 168 Cal.App.4th 783, 792-793.)
If the historical facts regarding jury deliberations are undisputed, we decide de novo whether those facts constitute jury misconduct. (Collins, supra, 49 Cal.4th at p. 242.). However, when an issue is tried on affidavits, as it was in this case, “ ‘and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed.’ ” (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 108; accord Young v. Brunicardi (1986) 187 Cal.App.3d 1344, 1350-1351 (Young) [“The determination by a trial court of a motion for a new trial submitted on affidavits which present conflicting facts is a determination of those controverted facts in favor of the prevailing party”].) Further, where there is conflicting evidence and the trial court does not expressly make findings regarding the evidence, we must assume the trial court impliedly resolved those conflicts in favor of the prevailing party. (Andrews v. County of Orange (1982) 130 Cal.App.3d 944, 957, disapproved on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.)
Citing Young, plaintiff argues that this court must review the entire record de novo to determine whether to grant a new trial. In Young, however, the court did not state the standard of review with respect to all three steps of the analysis on a motion for new trial based on jury misconduct. Instead, the court stated that it reviewed the last step—whether the misconduct was prejudicial—de novo. We do not reach the issue of the correct standard of review of a trial court’s ruling on the element of prejudice because we conclude, for reasons we shall explain, that there was substantial evidence supporting the trial court’s implied finding that no jury misconduct occurred. (Collins, supra, 49 Cal.4th at p. 242 [only if the court finds juror misconduct does the court “consider whether the conduct was prejudicial”].)
The Young court stated: “In our review of... an order denying a new trial... we are mindful that the appellate court has a constitutional obligation (Cal. Const., art. VI, § 13) to review the entire record, including the evidence, so as to make an independent determination as to whether the act of jury misconduct, if it occurred, was prejudicial to the complaining party’s right to a fair trial.” (Young, supra, 187 Cal.App.3d at p. 1348; but see People v. Ault (2004) 33 Cal.4th 1250, 1271-1272 [holding that standard of review of prejudice in a case where the trial court granted a motion for new trial was abuse of discretion].)
3. The Declarations of Both Sides Were Admissible To the Extent They Were Submitted to Prove the Content of Statements Made During Deliberations
Evidence Code section 1150, subdivision (a) provides: “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.”
In In re Stankewitz (1985) 40 Cal.3d 391 (Stankewitz), a juror advised the other jurors that he had been a police officer for over 20 years and that as a police officer he knew the law. (Id. at p. 396.) The same juror erroneously instructed the other jurors regarding the elements of robbery. (Ibid.) Our Supreme Court held that the statements by the police officer were overt acts that were admissible under Evidence Code section 1150, subdivision (a), though evidence regarding other the jurors’ responses to those statements was not admissible. (Stankewitz, at p. 398.)
Likewise, in this case, Murakami’s and Sequeira’s written testimony regarding the statements allegedly made by Juror Nos. 1, 3, 4, 7 and 9 was admissible. So too was the written testimony of Ingino, Ross, Boze, Harris, Ramsey, and Halaby regarding statements made by members of the jury during deliberations.
The jurors who submitted declarations on behalf of the City of Los Angeles also testified about whether certain statements affected their opinion about the case. All such testimony was inadmissible under Evidence Code section 1150, subdivision (a).
In addition, the testimony of Murakami and Sequeira regarding Juror No. 9 was inadmissible to the extent it was offered to show that he was confused or did not participate in jury deliberations by listening to other jurors. Such testimony relates to Juror No. 9’s mental processes. (Evid. Code, § 1150, subd. (a).)
4. There Was Substantial Evidence Supporting the Trial Court’s Implied Finding That There Was No Juror Misconduct
As described, ante, there was a conflict of evidence regarding precisely what was said during jury deliberations. Murakami and Sequeira testified that certain jurors made statements regarding the purported requirement of proving that retaliation was 50.1 percent of the motivating reason for defendant taking adverse employment actions against plaintiff. However, defendant’s witnesses did not recall such statements, deny that such statements occurred, or remember different statements regarding the matter.
We must review the evidence by making all reasonable inferences in favor of the judgment. Because the trial court did not make express rulings about the credibility of the witnesses, we assume that the trial court found that the disputed statements set forth in the declarations of Murakami and Sequeira did not occur. The trial court thus impliedly found that there was no jury misconduct or irregularity of the proceedings of the jury.
We hold that there was substantial evidence to support such implied findings. This evidence consisted of the declarations of Ingino, Ross, Boze, Harris, Ramsey, and Halaby.
Plaintiff’s reliance on Young and Stankewitz is misplaced. In those cases, the facts were undisputed. (Young, supra, 187 Cal.App.3d at p. 1349; Stankewitz, supra, 40 Cal.3d at p. 395.) By contrast, in this case, the facts are hotly disputed. Young and Stankewitz therefore are distinguishable.
5. We Do Not Reach the Issue of Prejudice
Because we find that there was substantial evidence supporting the trial court’s implied findings that there was no jury misconduct and no irregularity in the proceedings of the jury, we do not reach the issue of whether such alleged misconduct or irregularity was prejudicial.
DISPOSITION
The judgment is affirmed. Defendant City of Los Angeles is awarded costs on appeal.
We concur: CROSKEY, Acting P. J., ALDRICH, J.