Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. BC294248 Mel Recana, Judge.
Rockard J. Delgadillo and Carmen A. Trutanich, City Attorneys, Claudia McGee Henry, Sr. Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney, for Defendant and Appellant.
Nana Gyamfi for Plaintiff and Respondent.
GRIMES, J.
Defendant, the City of Los Angeles (City), appeals from the trial court’s order granting plaintiff Jabari Jumaane a new trial. We hold there was prejudicial juror misconduct and affirm. We reject the City’s contentions the trial court was without jurisdiction to rule on Jumaane’s motion and Jumaane was not prejudiced by juror misconduct because his lawsuit was time-barred by the late filing of a complaint with the Department of Fair Employment and Housing (DFEH).
FACTUAL AND PROCEDURAL BACKGROUND
1. Preliminary information.
Jumaane, an African American, was an employee of the City through his work with the Los Angeles Fire Department. He sued the City alleging racial discrimination, racial harassment, and retaliation. The jury rendered a verdict in favor of the City on all causes of action. The vote of the jury was nine to three. On August 14, 2007, the trial court entered a judgment on jury verdict. The record does not contain proof of service of a clerk’s notice of entry of judgment on the parties.
2. The motions for new trial and jnov.
On October 3, 2007, Jumaane filed and served motions for new trial and judgment notwithstanding the verdict (jnov). In the accompanying points and authorities, Jumaane argued there were a number of reasons to grant a new trial, including jury misconduct. In subsequently filed papers, Jumaane supported his motion for new trial with the declaration of Juror No. 2 in which Juror No. 2 accused some fellow jurors of misconduct.
The City did not offer any declarations in opposition to the motions. The City argued, in part, that the trial court was without jurisdiction to rule because more than 60 days had passed since the City served Jumaane with notice of entry of judgment. However, the City’s proof of service was dated June 27, 2007, seven weeks before judgment was entered on August 14, 2007.
In response to the City’s timeliness argument, Jumaane submitted the declaration of his counsel, Nana Gyamfi, in which she declared the following: After the jury rendered its verdict, she talked to the clerk of the court and counsel for the City asking about the notice of entry of judgment. She never learned that either the clerk of the court or the City had served a notice of entry of judgment. She never received a notice of entry of judgment. She theorized that perhaps service of this document had fallen “through the cracks, when [a City Attorney who had been partially responsible for the case] left the City Attorney’s Office.”
At the December 3, 2007 hearing on both motions, Jorge Otano, counsel for the City, argued the trial court did not have jurisdiction to address the motions because the court would be unable to rule within the applicable 60-day period (Code Civ. Proc., §§ 629, 659, 660.) Mr. Otano said he had sent Ms. Gyamfi a letter, attaching the judgment, on September 18, 2007. However, Mr. Otano did not have proof of service of the September 18, 2007 mailing.
Ms. Gyamfi said she never received a notice of entry of judgment. She also said she had examined the court file and could not locate a proof of service of notice of entry of judgment. Ms. Gyamfiacknowledged receiving paperwork around September 21, 2007, with the City’s proof of service dated June 27, 2007, but she explained the document she received was a copy of an unsigned proposed judgment. Ms. Gyamfi argued this could not be a valid notice of entry of judgment as the trial court did not enter judgment until weeks later, on August 14, 2007. The court viewed these documents, as Ms. Gyamfi had brought them to the hearing. The court also viewed documents Mr. Otano represented his office had served on Ms. Gyamfi, including a judgment on jury verdict with the court’s signature and file stamp showing the judgment was filed August 14, 2007, with a proof of service dated June 27, 2007.
Mr. Otano pointed out that Jumaane’s October 3, 2007 notice of motion for jnov included the following statement: “Plaintiff was served with notice of entry of the [judgment] on September 18, 2007.” Ms. Gyamfi explained this was the unsigned proposed judgment she had mentioned earlier in the hearing. The parties then argued the merits of the motions.
The court took the motions under submission and later that day, entered an order granting the new trial motion on the basis of juror misconduct and finding the jnov motion was moot. The court did not specify what juror misconduct warranted a new trial. The City appealed.
DISCUSSION
1. The trial court had jurisdiction to rule on Jumaane’s posttrial motions.
The City contends the trial court was without jurisdiction to grant the new trial motion because it failed to meet the 60-day limitation contained in Code of Civil Procedure section 660. We disagree.
Code of Civil Procedure section 659 delineates the deadlines for the filing of a motion for new trial. Code of Civil Procedure section 660 specifies the time limits for a ruling on a motion for new trial. It states in part, “Except as otherwise provided in Section 12a of this code, the power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court.” (Italics added.)
The time limits in Code of Civil Procedure section 660 are jurisdictional and strictly applied. Rulings on new trial motions made after the 60-day limitation are void. They are a nullity. (Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433, 1450-1451; Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal.App.4th 1042, 1049.) Through Code of Civil Procedure section 629, the jurisdictional time limits for new trial motions are made applicable to jnov motions.
Delivery of a conformed copy of the judgment constitutes notice of entry of judgment for purposes of commencing the 60-day period for filing new trial motions, even if no document served bears the title “notice of entry.” (Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 518.)
The City acknowledges there is no evidence the clerk gave notice of entry of judgment. The City also acknowledges it did not serve a written notice of entry as it does not suggest the proof of service dated June 27, 2007, could be a valid notice of entry of the August 14, 2007 judgment. The unsigned proposed judgment served on Jumaane cannot constitute service of written notice of the entry of judgment.
Rather, the City argues on appeal the 60 days began to run on September 18, 2007, because “[i]t was undisputed by any competent evidence... that Jumaane was served with Notice of Entry of Judgment on September 18, 2007.” However, the City admits it did not produce a valid proof of service for that date. Additionally, Ms. Gyamfi denied receiving a notice of entry of judgment, because the judgment she received in September 2007 was not signed or file-stamped. The trial court had to decide the contested fact whether plaintiff received notice of entry of judgment on September 18, 2007, and its credibility call is binding on this appeal. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421-422; Evid. Code, §§ 604, 641.)
Jumaane is not bound by the statement in the notice of his jnov motion (“Plaintiff was served with notice of entry of the [judgment] on September 18, 2007”) because the statement was not made in a complaint, demurrer, answer, or cross-complaint, and thus, it is not a judicial admission. (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746.) The trial court did not abuse its discretion by implicitly finding the motions for new trial and jnov were timely when served October 3, 2007. Therefore, the power of the court to rule on Jumaane’s motions expired 60 days after Jumaane served notice of his intention to move for new trial and jnov. The court met this deadline by issuing its order on Monday, December 3, 2007. (Code Civ. Proc., §§ 12a, 660.)
2. There was prejudicial jury misconduct.
We are not persuaded by the City’s contention that there was no evidence of juror misconduct.
Code of Civil Procedure section 657 addresses new trial motions. It requires trial courts to “state not only the ground upon which the motion is granted but also the reasons for granting the motion on that ground.” (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633 (Oakland Raiders). “[W]hen as here an order granting a new trial states the ground as jury misconduct, but the trial court fails to specify the reasons for that conclusion, the order is not void. [Citations.] The order may still be sustained if a new trial should have been granted upon any ground set out in section 657 except the grounds of insufficiency of the evidence or inadequate or excessive damages. [Citation.]” (Oakland Raiders, supra, 41 Cal.4th at p. 636.) In reviewing an order granting a new trial based upon jury misconduct where the trial court has failed to provide a statement of reasons, we conduct an independent review of the evidence, and we do not defer to the court’s resolution of conflicts in the evidence. (Id. at pp. 636-640.) Where, however, “the record leaves no room for doubt as to the trial court’s reasons for granting a new trial and its resolution of conflicting evidence supporting those reasons--as may be the case where the motion for new trial alleged only a single, specific instance of jury misconduct[, ]” we may defer to the court.” (Id. at p. 643 (conc. opn. of Baxter, J.).)
Misconduct of the jury is grounds for a new trial. (Code Civ. Proc., § 657.) To warrant reversal of a judgment based upon juror misconduct, the misconduct must be shown and there must be resulting prejudice. (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 57.) Further, “[i]t is well established that ‘[a] juror who conceals relevant facts or gives false answers during the voir dire examination... undermines the jury selection process and commits misconduct. [Citations.]’ [Citation.]” (People v. Majors (1998) 18 Cal.4th 385, 417.) This includes failing to expose biases. (Ovando, supra, at p. 57.) “Juror misconduct raises a rebuttable presumption that the misconduct was prejudicial. [Citation.]” (Id. at p. 58.)
The usual rule is that a verdict cannot be impeached “with evidence of jurors’ subjective ‘mental processes’ (Evid. Code, § 1150).... However, the rule against proof of juror mental processes is subject to the well-established exception for claims that a juror’s preexisting bias was concealed on voir dire. [Citations.]” (In re Hamilton (1999) 20 Cal.4th 273, 298-299, fn. 19.)
Here, the motion for new trial was supported by the declaration of Juror No. 2 in which she declared she was disturbed by statements made by a number of jurors. We need only discuss the statements Juror No. 2 attributed to Juror No. 10 as these statements constitute grounds supporting the order granting new trial.
Juror No. 2’s declaration referenced a June 22, 2007 letter she had sent to the court. The letter contained the same accusations as those attested to by Juror No. 2 in her declaration.
According to Juror No. 2, “[a]s the deliberations were winding down... Juror No. 10 said ‘all black people want is money[.]’ The room fell uncomfortably silent. Regardless of the other jurors’ votes, I believe that everyone was shocked and surprised by her statement. She did not recant that statement.” In voir dire, Juror No. 10 did not respond to questions asking if she could deal objectively with cases of racial bias. She also did not respond to the following questions: “Are there any of you that feel... discrimination lawsuits, that they’re not really legitimate? That generally speaking, people just file these lawsuits as a way to win a lottery ticket, get them some money?” “Are there any of you that feel... these types of cases are usually raised by people who are just trying to make an excuse for why they didn’t do what they were supposed to do?”
As the City did not present any declarations in opposing the new trial motion, the uncontradicted evidence was that Juror No. 10 evidenced bias against African Americans by stating “all black people want is money.” This statement suggested, contrary to Juror No. 10’s voir dire responses, that African Americans were not to be believed because they would do anything to get money, including filing a lawsuit not based on truth. Since Jumaane was African American, it meant Juror No. 10’s bias and prejudice predisposed her evaluation of the case, preventing her from fairly and impartially judging the evidence. We cannot infer Juror No. 10’s bias had no impact on the verdict because Juror No. 10 was one of the nine jurors who voted for the City.
Therefore, the presumption of prejudice has not been rebutted, and we must affirm the new trial order based upon juror misconduct as it is reasonably probable Jumaane has suffered harm as a result of the misconduct. (People v. Nesler (1997) 16 Cal.4th 561, 578-579; Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417; Province v. Center for Women’s Health & Family Birth (1993) 20 Cal.App.4th 1673, 1680 [misconduct prejudicial when vote nine to three], disapproved on other grounds in Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 41.)
3. The DFEH complaint was timely filed.
The City contends that even if there was jury misconduct, Jumaane failed to show he was harmed because the City is entitled to judgment as a matter of law. The City claims Jumaane did not file his complaint with the DFEH within one year of any adverse employment action (Gov. Code, § 12960, subd. (d)), and thus, Jumaane could not bring his lawsuit. The City had moved for a directed verdict on this ground but the trial court apparently did not rule on the motion. We are not persuaded Jumaane failed to file a timely DFEH complaint.
a. Additional facts
In April 2000, the City gave Jumaane a “pre-disciplinary package” for proposed disciplinary action pertaining to his alleged insubordination and for failing to take a Department vehicle home, which would have required him to have coverage with his own insurance policy. After a Skelly hearing (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215), the Department proposed to suspend Jumaane from March 5, 2001, to March 19, 2001. Jumaane exercised his right to convene a Board of Rights to contest the allegations. On April 2, 2001, Jumaane withdrew his request for a Board hearing. Jumaane was suspended from April 16 to April 30, 2001. On April 16, 2002, Jumaane filed an administrative complaint with the DFEH.
b. Discussion
An “adverse employment action” is one that “materially affect[s] the terms, conditions, or privileges of employment, ” taking “into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051 & 1052, fn. omitted.) A suspension is likely to have adversely affected Jumaane’s opportunity for career advancement. The City does not dispute that a suspension is an adverse employment action.
Rather, the City contends the last possible date Jumaane suffered any adverse employment action was either April 2, 2001, when Jumaane advised the Department he was rescinding his request for a Board hearing, or April 12, 2001, the date the Department received a writing from Jumaane asking to revert from inspector to firefighter to avoid further discrimination. The City correctly notes that Jumaane failed to respond to this argument in his respondent’ brief on appeal. However, as the appellant, the City has the burden to persuade us that Jumaane did not file a timely DFEH complaint. The City does not explain why April 30, 2001, the last day of Jumaane’s suspension, was not the last date Jumaane suffered an adverse employment action. We find that since Jumaane’s suspension ended on April 30, 2001, he had until at least one year from that date to file a DFEH complaint. Therefore, the DFEH complaint filed April 16, 2002, was timely.
DISPOSITION
The order granting a new trial is affirmed. Jumaane is entitled to costs on appeal.
We concur: RUBIN, ACTING P. J.FLIER, J.