Opinion
E078011
07-10-2023
ALEJANDRA HERNANDEZ, Plaintiff and Respondent, v. ADAM GABRIEL OLIVEROS et al., Defendants and Appellants.
Law Office of Cleidin Z. Atanous and Cleidin Z. Atanous for Defendants and Appellants. Law Offices of Brian D. Witzer and Terence J. Mix; The Law Offices of Kenneth J. Melrose and Brian D. Witzer for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVDS1815754. Brian S. McCarville, Judge. Affirmed
Law Office of Cleidin Z. Atanous and Cleidin Z. Atanous for Defendants and Appellants.
Law Offices of Brian D. Witzer and Terence J. Mix; The Law Offices of Kenneth J. Melrose and Brian D. Witzer for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
This is a personal injury action arising out of an accident in which Adam Oliveros, while driving an SUV owned by Jimmy Grissom, rear-ended an SUV driven by Alejandra Hernandez. A jury found that Oliveros was negligent, but that his negligence did not cause any harm to Hernandez. The trial court granted Hernandez's motion for new trial. It ruled, orally, that the verdict was against the weight of the evidence; however, it rejected Hernandez's alternative claim of juror misconduct. Oliveros and Grissom appeal. They contend that: (1) Because the trial court's written order failed to state any grounds, it cannot be upheld on the ground that the verdict was against the weight of the evidence.
Grissom was liable, if at all, based on his ownership of the SUV and/or his entrustment of it to Oliveros. Because his interests were aligned with Oliveros's and they have the same counsel, we disregard his status as a separate party. Further references to Oliveros as a litigant (rather than as an actor in the underlying events) include Grissom.
(2) The trial court correctly ruled that there was no admissible evidence of juror misconduct.
We agree that, because the trial court's written order failed to state any grounds, we cannot uphold it on the ground that the verdict was against the weight of the evidence, as the trial court stated in its oral ruling. However, we will also hold that Hernandez was entitled to a new trial based on juror misconduct. Hence, we will affirm.
I
STATEMENT OF FACTS
In January 2017, Oliveros rear-ended Hernandez. He was going about 25 miles an hour; Hernandez was going about 3 miles an hour. Her SUV was pushed into an SUV stopped ahead of her.
Nearly two months after the accident, Hernandez was found to have two herniated disks in her lower back and an abnormal disk in her neck. The parties' respective experts disagreed as to whether the neck abnormality was preexisting and also as to whether it was the result of the accident rather than a degenerative process. They further disagreed as to whether the accident did (or even could) cause Hernandez's herniated disks.
Hernandez had two operations on her spine, one in October 2018 and another in November 2019; at the time of trial, she was scheduled for a third. She testified that, since the accident, she had been in pain, often severe pain. She was unable to do her job as a stocker at Nordstrom, unable to do household tasks, unable to participate in family activities, and unable to hike and work out as she formerly did. She had gained weight and become depressed. She was seeking $2.3 million in economic damages, plus an unspecified amount of damages for pain and suffering.
II
STATEMENT OF THE CASE
After a roughly month-long trial, the jury returned a special verdict, finding that Oliveros was negligent, but that his negligence was not a substantial factor in causing harm to Hernandez.
Hernandez filed a motion for new trial. Among other things, she argued that the defense experts had conceded that she suffered at least some harm as a result of the accident, and therefore either there was insufficient evidence to support the verdict or the verdict was against the weight of the evidence. She also argued that there were multiple instances of juror misconduct.
After hearing argument, the trial court granted the motion. Orally, from the bench, it found "that the weight of the evidence in this case is that the plaintiff suffered some damages."
Regarding jury misconduct, it ruled that "[m]ost" of the juror declarations were inadmissible as hearsay and/or under Evidence Code section 1150. It also found no "overt juror misconduct during the deliberative phase" and nothing "inappropriate."
The minute order of the hearing stated, "The Court finds: [¶] . . . [¶] Findings stated on the record by the Court." The trial court's written order granting the motion - drafted, at the trial court's direction, by Hernandez's counsel - did not state any grounds or reasons.
III
INSUFFICIENCY OF THE EVIDENCE
In his opening brief, Oliveros contends that, because the trial court did not issue a written statement of reasons, we do not defer to its factual findings (i.e., that the jury's verdict is not supported by the weight of the evidence). Rather, we can affirm the new trial order on a theory of insufficiency of the evidence only if the jury's verdict is not supported by substantial evidence at all.
In his reply brief, however, he takes a different position. He contends that, because the trial court did not issue a written statement of reasons, we cannot affirm the grant of a new trial on any theory of insufficiency of the evidence.
Code of Civil Procedure, section 657 provides: "The order passing upon and determining the motion must be made and entered . . . and if the motion is granted must state the ground or grounds relied upon by the court, and may contain the specification of reasons. If an order granting such motion does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk. The court shall not direct the attorney for a party to prepare either or both said order and said specification of reasons." (Italics added.)
In other words, section 657 requires that the grounds and reasons must be in writing. (Stevens v. Parke, Davis &Co. (1973) 9 Cal.3d 51, 62-63.) "[O]ral statements made by the trial judge at the hearing of the motion[] clearly do not satisfy this requirement." (Id. at p. 63.)
Hernandez responds that "the trial court's minute order granting the new trial incorporated by reference the reasons stated by the court on the record ...."
"The trial court's reference in its minute order to its oral statement of reasons during the hearing cannot rectify the defect. [Citation.]" (Berge v. International Harvester Co. (1983) 142 Cal.App.3d 152, 160; accord, Worden v. Gentry (1975) 50 Cal.App.3d 600, 605.) Moreover, an oral statement of reasons cannot be deemed substantial compliance; "an oral recital, no matter how thoroughly it may have been prepared, cannot amount to compliance in any degree, 'substantial' or otherwise, with a statutory directive that such a statement be in writing." (La Manna v. Stewart (1975) 13 Cal.3d 413, 423.) Finally, the error cannot be deemed harmless on the theory that the reporter's transcript adequately reflects the basis of the trial court's ruling. (Worden v. Gentry, supra, at p. 605.)
Hernandez relies on Twedt v. Franklin (2003) 109 Cal.App.4th 413 (Twedt).
There, in its oral ruling granting the motion for new trial, the trial court gave a full statement of reasons. (Id. at p. 416.) It then filed a written order granting the motion on the ground that the verdict was against the weight of the evidence. (Id. at p. 415.) The order said, "The court incorporates a transcript of oral ruling attached in clarification of this order." (Id. at p. 416.) The transcript was physically attached to the written order. (Id. at p. 417.)
The appellate court held that "these facts fulfill the statutory requirements for a written order that was signed and filed and that specified the reasons for granting a new trial." (Twedt, supra, 109 Cal.App.4th at p. 419.) It explained, "(1) the written transcript specifying the reasons for the new trial was attached physically to the order, (2) the order referenced and incorporated the attached transcript, (3) the trial judge signed the order, and (4) the order and attachment were filed with the clerk of court." (Id. at p. 419.)
Twedt is not controlling, because here a written transcript was not physically attached to the trial court's order. (See Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2022) ¶ 18:378.1 [citing Twedt for the proposition that "a judge's written order that attaches and incorporates a hearing transcript may comply with CCP § 657."].) Although the oral statement of reasons was transcribed in writing by the court reporter, that transcription was never "entered" nor "signed and filed."
We turn, then, to the effect of the failure to file a written statement of grounds.
A new trial order that fails to state grounds is "defective but not void ...." (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 900.) Code of Civil Procedure "section 657 requires an appellate court to affirm a new trial order if it should have been granted on any ground stated in the motion. However, an appellate court cannot affirm on grounds of insufficiency of the evidence . . . unless such ground is stated in the new trial order." (Id. at p. 905, italics added; see id. at p. 899.)
Earlier cases held that, even if an order granting a new trial did not specify insufficiency of the evidence as a ground, the appellate court could still affirm on this ground, provided the evidence was insufficient as a matter of law. (E.g., Aced v. Hobbs-Sesack Plumbing Co. (1961) 55 Cal.2d 573, 578; Adams v. American President Lines (1944) 23 Cal.2d 681, 683.) In 1965, however, Code of Civil Procedure section 657 was amended so as to provide that "the order shall not be affirmed upon the ground of the insufficiency of the evidence . . ., unless such ground is stated in the order granting the motion ...." (Stats. 1965, ch. 1749, § 1, italics added; compare Stats. 1939, ch. 713, § 1.) Since then, these cases are no longer good law on this point.
In sum, the position that Oliveros has belatedly taken in his reply brief is correct. The trial court's order failed to state any ground, including insufficiency of the evidence; therefore we cannot affirm based on insufficiency of the evidence, although we can affirm on other grounds.
The fact that Oliveros did not take this position in his opening brief does not preclude us from relying on it. Hernandez did brief the question of the applicable standard of review. Moreover, she was well-aware that Oliveros was arguing that the trial court's failure to state reasons changed the standard of review in his favor. Nevertheless, her only response was that the trial court did state reasons; she did not challenge his claim that the failure to state reasons changed the standard of review. We conclude that she had notice of and an opportunity to be heard on the issue.
She asserted that "[g]enerally, an order granting a new trial is reviewed for an abuse of discretion," but "even if this court were to apply the de novo rule of review, . . . [the] order granting Plaintiff a new trial should be affirmed."
IV
JURY MISCONDUCT
Hernandez asks us to sustain the order granting a new trial on the alternative ground of juror misconduct.
In her motion for new trial, Hernandez also argued that (1) Oliveros's counsel committed misconduct in closing argument, (2) the jurors' deliberations were "[r]ushed" (bolding omitted), and (3) some jurors responded incorrectly when polled. Hernandez does not ask us to affirm the grant of a new trial on any of these grounds. "Where, as here, the trial court has failed to make a timely specification of any ground for the new trial order, the burden is on the movant to advance any grounds stated in the motion upon which the order should be affirmed, and a record and argument to support it. [Citations.]" (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 906.) We conclude that Hernandez has forfeited these alternative grounds.
A. Additional Factual Background.
Hernandez's motion for new trial was supported by declarations by Juror No. 4 and Juror No. 9.
1. Declaration of Juror No. 4.
According to Juror No. 4, Juror No. 1 "announced from the outset of deliberations that regardless of the evidence, he would never 'sign any piece of paper, however strongly they argued to the contrary, that meant the Plaintiff and her lawyers would get millions of dollars.'"
During deliberations, Juror No. 1 "seemed most concerned about what the lawyers and Ms. Hernandez were going to be awarded and refused to consider either the evidence or the law as stated in the jury instructions. It was clear that he had made up his mind in favor of the defendants from the start of the deliberations, or earlier, and regardless of what the evidence showed based on his experience, which he felt was more important than the evidence in this case, coupled with his repeated desire not to see the Plaintiff awarded any money as he refused to discuss any dollar figures at all."
In addition, "multiple jurors talked about their own personal experiences . . . and presented such experiences in place of the evidence offered in this case."
For example, Juror No. 1 said "he himself had been involved in a similar accident . . . injured his back, but since he didn't get surgery and didn't sue anyone, it was somehow inappropriate for the Plaintiff here to have done so. He said that doctors offered to fix his back, but he refused, and now he was doing fine, so similarly there was no real reason why she needed that kind of surgery."
Likewise, Juror No. 11 "completely disregarded plaintiff's experts . . . and talked about how in her personal experience as a nurse, there was simply no way a person could possibly ever get a disc herniation from an accident like the one that Ms. Hernandez had." An unspecified juror "disregarded the expert testimony to the contrary and changed her mind at the urging of juror number 11."
Finally, some jurors had "concerns" about how Oliveros was "going to pay for a large verdict should one be awarded ...." Juror No. 5 "expressed disbelief during deliberations as to how . . . Oliveros was going to be able to pay for any purported judgment ...." Juror No. 1 also "t[ook] the position" that Oliveros could not afford a large verdict. Juror No. 4 reminded them that this was not a proper consideration.
2. Declaration of Juror No. 9.
Juror No. 9 corroborated Juror No. 4 regarding (1) Juror No. 1 having made up his mind "from the outset of deliberations . . . regardless of the evidence presented in the case," and (2) Juror No. 11 talking about her personal experience as a nurse.
In her motion for new trial, Hernandez also argued that Juror No. 5 committed misconduct by talking to a person in a wheelchair during breaks. That person turned out to be Oliveros's brother, who was "severely disabled and ha[d] difficulty communicating." The trial court ruled that this was not misconduct. Hernandez does not assert this as juror misconduct in this appeal. To the contrary, she "concede[s] that she has waived the right to complain about one of the jurors speaking with Mr. Oliveros' disabled brother during the trial."
B. General Legal Principles.
"[A] court generally undertakes a three-step inquiry in ruling on a new trial motion based on juror misconduct. First, the court determines whether affidavits supporting the motion are admissible. Second, the court determines whether the facts establish misconduct. Third, the court determines whether any misconduct resulted in prejudice. [Citation.]" (Stokes v. Muschinske (2019) 34 Cal.App.5th 45, 52.)
Evidence Code section 1150, as relevant here, 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." (Evid. Code, § 1150, subd. (a).)
"'This statute 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 ...." [Citation.]" . . . The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration." [Citations.]' [Citation.]" (People v. Gonzales (2012) 54 Cal.4th 1234, 1281.)
"Evidence Code section 1150, while rendering evidence of the jurors' mental processes inadmissible, expressly permits, in the context of an inquiry into the validity of a verdict, the introduction of evidence of 'statements made . . . within . . . the jury room.' We have warned, however, that such evidence 'must be admitted with caution,' because '[s]tatements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors.' [Citation.] But statements made by jurors during deliberations are admissible under Evidence Code section 1150 when 'the very making of the statement sought to be admitted would itself constitute misconduct.' [Citation.]" (People v. Cleveland (2001) 25 Cal.4th 466, 484.)
"On the other hand, where . . . the affidavit or declaration suggests '" 'deliberative error' in the jury's collective mental process - confusion, misunderstanding, and misinterpretation of the law,"' particularly regarding 'the way in which the jury interpreted and applied the instructions' [-] the affidavit or declaration is inadmissible. [Citation.] The mere fact that such mental process was manifested in conversation between jurors during deliberations does not alter this rule. [Citation.]" (People v. Sanchez (1998) 62 Cal.App.4th 460, 476, italics added; accord, Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1683.) Such deliberative error rises to the level of misconduct only "where the declarations establish 'an express agreement' to violate the court's instructions 'or extensive discussion evidencing an implied agreement to that effect.' [Citation.]" (Mesecher v. County of San Diego, supra, 9 Cal.App.4th at p. 1684.)
C. Application to These Facts.
1. Juror No. 1's announcement.
Juror No. 1's announcement at "the outset of deliberations" that he would not agree to award Hernandez millions of dollars "regardless of the evidence" was not hearsay, because it was not offered for its truth. (Evid. Code, § 1200, subd. (a).) Rather, it was offered to prove a "verbal act," also known as an "operative fact" (see generally Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 316) - namely, that Juror No. 1 refused to engage in deliberations.
Moreover, this statement was admissible under Evidence Code section 1150, because the very making of the statement constituted misconduct, as we will show.
The fact that Juror No. 1 had made up his mind, standing alone, was not misconduct. "A juror who holds a preliminary view that a party's case is weak does not violate the court's instructions so long as his or her mind remains open to a fair consideration of the evidence, instructions, and shared opinions expressed during deliberations." (People v. Allen and Johnson (2011) 53 Cal.4th 60, 73.)
His refusal to deliberate, however, was misconduct. (People v. Leonard (2007) 40 Cal.4th 1370, 1410.) His refusal to consider the evidence was also misconduct. The trial court had instructed, "You should consider all the evidence ...." (CACI No. 200.) "Each of you must consider all the evidence and decide what you think happened. Each of you must decide the facts based upon the evidence admitted in the trial." (CACI No. 5000.) "A sitting juror commits misconduct . . . by failing to follow the instructions and admonitions given by the trial court." (In re Hamilton (1999) 20 Cal.4th 273, 305.)
The additional testimony about what Juror No. 1 "seemed most concerned about" and what he "felt" and "desired," along with the conclusion that "he had made up his mind," was inadmissible under Evidence Code section 1150. However, it added nothing to his own express announcement.
2. Juror No. 1's experience with a back injury.
Juror No. 1's statement that, based on his experience with his back injury, Hernandez did not need surgery was not hearsay, because it was not offered for its truth. Moreover, it was admissible under Evidence Code section 1150, because the very making of the statement constituted misconduct, as follows.
Smith v. Covell (1980) 100 Cal.App.3d 947 is about as on point as a case can get. There, six weeks after Covell rear-ended Smith's car, Smith developed lower back pain; she was found to have a herniated disk. The jury awarded Smith only $10,000. (Id. at p. 951.) Smith moved for a new trial, based on jury misconduct. According to juror declarations, during deliberations, the foreman told the other jurors 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." (Id. at p. 952.)
The appellate court held that this was juror misconduct. (Smith v. Covell, supra, 100 Cal.App.3d at pp. 952-953.) "Such conduct is clearly impermissible. Jurors cannot, without violation of their oath, receive or communicate to fellow jurors information from sources outside the evidence in the case. [Citation.]" (Id. at p. 952.)
3. Juror No. 11's experience as a nurse.
Juror No. 11's statement that "in her personal experience as a nurse, there was simply no way a person could possibly ever get a disc herniation from an accident like the one that Ms. Hernandez had" was not hearsay, because it was not offered for its truth. Moreover, it was admissible under Evidence Code section 1150, because, again, the very making of the statement constituted misconduct.
The trial court had instructed: "You should use your common sense and life's experience in deciding whether testimony is true and accurate. However, during your deliberations, do not make any statement or provide any information to other jurors based on any special training or unique personal experiences that you may have as related to matters involved in this case. What you may know or have learned through your training and experience is not part of the evidence received in the trial." (Italics added.)
However, whether Juror No. 11 "completely disregarded plaintiff's experts" and whether another juror "disregarded the expert testimony to the contrary and changed her mind at the urging of juror number 11" was inadmissible testimony about those jurors' subjective reasoning process. In any event, it was not misconduct to disregard the expert testimony. "Expert opinion is not binding on a jury. The jury is free to reject even the uncontradicted testimony of an expert witness. [Citations.]" (People v. Engstrom (2011) 201 Cal.App.4th 174, 187, fn. omitted.) The misconduct did not consist in disregarding the expert testimony; it consisted in urging other jurors to disregard the expert testimony based on one juror's claim of personal expertise.
4. Jurors' "concerns" about Oliveros's ability to pay.
Juror No. 1 and Juror No. 5 expressly argued that Oliveros could not afford to pay a large verdict. However, this was mere deliberative error, albeit manifested in conversation between jurors during deliberations. (See People v. Sanchez, supra, 62 Cal.App.4th at p. 476.) Thus, it was not misconduct in itself; it was misconduct only if there was an express or implied agreement among the jurors to rely on this factor. (Mesecher v. County of San Diego, supra, 9 Cal.App.4th at p. 1684.)
There was no evidence of any such agreement. The evidence showed only that other jurors also had "concerns" about Oliveros's ability to pay a judgment. That evidence relates to those jurors' subjective mental process and was therefore inadmissible. It follows that the statements by Juror No. 1 and Juror No. 5 were likewise inadmissible.
B. Oliveros's Counterarguments.
Oliveros asserts that "a verdict may not be impeached by the affidavits of jurors who concur or dissent in rendering it, except to show that it was secured by chance," citing Woods v. Pacific Greyhound Lines (1949) 91 Cal.App.2d 572, 576 (Woods).
The Supreme Court has held that the enactment of the Evidence Code, and in particular of Evidence Code section 1150, abrogated this rule. In People v. Hutchinson (1969) 71 Cal.2d 342, it held: "[J]urors are competent witnesses to prove objective facts to impeach a verdict under section 1150 of the Evidence Code." (Id. at p. 351.) It overruled its own contrary precedents and all "similar cases . . . contrary to our conclusion herein ...." (Ibid.) Thus, it overruled Woods, although not by name.
Oliveros also asserts that "mere isolated remarks or comments do not constitute misconduct," citing Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803 (Iwekaogwu). Iwekaogwu says no such thing. There, the appellant argued that it was misconduct for one juror to say "that the damages award should set an example and send a message ...." (Id. at p. 819.) The Iwekaogwu court applied the rule that deliberative error is not misconduct unless there is evidence of an express or implied agreement among the jurors. (Id. at p. 820.) Thus, it said, "The juror declarations . . . evidence only one remark made by one juror. They do not establish either an express agreement . . . or that there was extensive discussion of the topic. [Citation.]" (Ibid.) It did not state a rule that an isolated remark or comment can never be misconduct. When the misconduct consists of refusing to deliberate or injecting one juror's claimed expertise into the deliberations - rather than deliberative error - an isolated remark can be plenty.
C. Prejudice.
"Misconduct by a juror raises a rebuttable presumption of prejudice. [Citation.]" (People v. Bennett (2009) 45 Cal.4th 577, 626.) "The presumption of prejudice '"may be rebutted . . . by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm." [Citations.]' [Citations.] 'Whether prejudice arose from juror misconduct . . . is a mixed question of law and fact subject to an appellate court's independent determination. [Citations.]' [Citation.]" (People v. Lewis (2009) 46 Cal.4th 1255, 1309.)
Juror No. 1's insistence that he would never award Hernandez millions of dollars, along with his refusal to deliberate, would naturally tend to coerce the other jurors to agree with him and to enter a verdict denying Hernandez such an award. Moreover, Juror No. 11's claim to know, based on her experience as a nurse, that the accident could not have caused Hernandez's claimed injuries went to causation - the central disputed issue in the case. Nothing in the record rebuts the presumption of prejudice.
Admittedly, Juror No. 11's claim to know, based his own back injury, that Hernandez did not need back surgery went to damages, rather than to causation, which was the basis of the jury's special verdict. Arguably, then, it was not prejudicial.
We therefore conclude that the trial court was required to grant the motion for new trial based on juror misconduct.
V
DISPOSITION
The order granting a new trial is affirmed. In the interest of justice, each side shall bear its own costs on appeal.
We concur: CODRINGTON J., MENETREZ J.