Virzi v. Goben

Virzi v. Goben

Filed 7/31/08 Virzi v. Goben CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

JUDITH VIRZI et al., Plaintiffs and Appellants, v. MICHAEL DEAN GOBEN et al., Defendants and Respondents.

E041751 (Super.Ct.Nos. SCV123400 & SCVSS123400) OPINION

APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. Affirmed.

Law Offices of Orlando J. Castano, Jr., and Franklin Casco, Jr.; Law Offices of Montgomery G. Griffin, and Montgomery G. Griffin, for Plaintiffs and Appellants.

Hosp, Gilbert, Bergsten & Phillips, Robert T. Bergsten and Paal Hjalmar Bakstad for Defendants and Respondents.

I. INTRODUCTION

Plaintiffs Judith Virzi and Raymond A. Virzi, Sr.,[1] contend they were denied a fair trial in their wrongful death action because (1) a juror (Juror No. 10) committed prejudicial misconduct by concealing bias during voir dire and (2) the jury improperly considered matters not presented at trial during deliberations. Plaintiffs also argue the juror misconduct resulted in an inadequate award of damages. We find no error, and we affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Plaintiffs Action for Wrongful Death

On February 21, 2004, the vehicle of plaintiffs 34-year-old son Vincent Virzi (decedent) broke down on Interstate 40 near Albuquerque, New Mexico. Defendant Michael Dean Goben (Goben) was operating a commercial truck owned by defendant O & S Trucking, Inc. (OST), on the same road. While decedent was outside his vehicle, Gobens truck collided with decedent, fatally injuring him.

Plaintiffs sued defendants Goben and OST for wrongful death damages. Following a two-week trial, the jury, by a 9-3 special verdict, found defendants 50.5 percent negligent. The jury awarded damages of $25,000, which the trial court then apportioned to $12,625.

B. Judiths Encounter with Jurors During Deliberations

On the morning of the second day of jury deliberations, Judith approached three jurors (one of whom was Juror No. 10) and asked whether the jury had reached a decision or verdict. That afternoon, after the jury had recessed for the day, the encounter was brought to the courts attention. The following morning, after the jury notified the court that it had reached a verdict, the trial court held a hearing concerning Judiths contact with jurors.

The jury foreperson stated that the jurors had discussed the encounter during deliberations. The trial court asked the three jurors whom Judith had approached whether the incident had affected them either positively or negatively as to the merits of the case. All three jurors answered in the negative. The remaining jurors also collectively answered in the negative when asked whether, [h]aving received that information, did that information in any way influence or affect your verdict in this matter? The trial court took no further action.

C. Motion for New Trial

Plaintiffs filed a motion for new trial, alleging juror misconduct and claiming the award of damages was inadequate as a matter of law.

To support their motion, plaintiffs filed the nearly identical declarations of three jurors (Juror Nos. 3, 7, and 9).[2] The declarations stated that in the first day of deliberations, the jurors had answered the questions whether defendants had been negligent and whether that negligence had been a substantial factor in causing harm to plaintiffs. The declarations stated that during the morning session of the second day of deliberations, Juror No. 10 told the other jurors that Judith just approached me in the hallway and asked me if we were done deliberating and whether we have reached a verdict. She is just money hungry and wants us to just hurry up and complete this process so she can get her money and go home.

12. [Juror No. 10] proceeded to say, Plaintiff Virzi is just a money hungry plaintiff. I dont think we should give her a penny.

13. After [Juror No. 10] made the money hungry statement several jurors began to discuss the issue that plaintiff Virzi was just a money hungry plaintiff.

The declarations referred to other discussions among the jurors that Judith was money hungry, and several jurors stated they would not give Judith any damages because she was money hungry.

The declarations stated that Juror No. 10 began discussing the facts of her and her husbands past personal case. [Juror No. 10] said, my husband is a truck driver and we were sued in a similar case by money hungry plaintiffs just like plaintiff Judith Virzi.

18. [Juror No. 10] continuously compared the facts of her case to the Virzi case and said, we had offered the plaintiffs in our case $2 million to settle and the plaintiffs did not accept the offer because they were money hungry plaintiff[s] just like plaintiff Judith Virzi in this case.

19. [Juror No. 10] proceeded to say that plaintiff Virzi is a money hungry plaintiff just like the plaintiffs that sued her husband and herself, and that she was not going to pay plaintiff Virzis one penny.

Defendants produced a counter declaration of the jury foreperson (Juror No. 8). Juror No. 8 recalled that Judiths question in the hallway had simply been, Have you reached a verdict yet?; that Juror No. 10s statement had been more to the effect of [plaintiff] just wants her money, and that Juror No. 10 had not made that remark until after lunch. Juror No. 8 declared Juror No. 10 had been at times outspoken and opinionated as to damages, and that Juror No. 10s comments appeared to have been expressions of surprise that a party would have the audacity to approach jurors during deliberations.

Juror No. 8 denied that any discussion had occurred regarding Juror No. 10s past personal case. Juror No. 8 stated that Juror No. 10 had expressed some surprise that she was selected for the jury after disclosing to the attorneys during jury selection that her husband is a truck driver, but Juror No. 8 did not recall ever hearing a $2 million figure or any discussion of Juror No. 10s past personal case.

Juror No. 8 stated that damages had been calculated in a methodical manner, taking into account decedents limited earnings record; that he was not licensed in massage and that anyone could obtain his massage membership; that he was terminated for inappropriate touching and thereafter unemployed; that he had $35.00 in his checking account when he left Colorado; that his family actually supported him by paying for his trips to Hawaii and to Southern California for his sisters wedding; that he was placed in juvenile hall for striking his own mother; and that there was a gap of seven to 10 years in the testimony and photo montage in which the jurors were presented with no evidence regarding the quality and quantity of contact he had with his family, if any.

After hearing argument on plaintiffs motion for new trial, the trial court stated, Frankly I dont think [Juror No. 10] ever took control of this matter. And I tend to believe our foreperson. The court found that Juror No. 10s injection of personal facts into the case was disputed and that the court would not give plaintiffs three nearly identical declarations any more weight than the one presented by defendants. The court found that Juror No. 10s statements did not rise to the level of misconduct.

The trial court then turned to plaintiffs claim that damages had been inadequate as a matter of law. Plaintiffs counsel argued that defense counsel, during closing arguments, had stated that damages of around $100,000^[3] would have been reasonable, and thus, the actual award of $25,000 was unreasonably low. The trial court responded, I dont think [defense counsel] told [the jury] to award anything. I did think he suggested a low number if they thought they had to award anything, but certainly wasnt telling them  . The trial court denied plaintiffs motion for new trial.

Other facts are set forth in the discussion of the issues to which they pertain.

III. DISCUSSION

A. Juror Misconduct

On appeal, plaintiffs contend Juror No. 10 committed misconduct by concealing bias during voir dire[4] and by using a unique past personal experience during deliberations.

1. Standard of Review

When we review the trial courts ruling on a motion for new trial, we accept the trial courts credibility determinations if supported by substantial evidence. (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 507-508.) When, as in this case, an issue was tried on declarations, those declarations favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom . . . . (Id. at p. 508, fn. 3.) When the facts are in conflict, we do not disturb the trial courts determination of the controverted facts. (Ibid.) [I]t is the trial court that must assess the credibility of affiants or declarants, and the trial court is entitled to believe one over the other. [Citations.] (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 159-160.)

2. Juror No. 10s Alleged Misconduct During Voir Dire

Plaintiffs contend on appeal that Juror No. 10 committed misconduct during voir dire when she failed to disclose previous litigation involving her husband in his capacity as a truck driver.[5] Misconduct of the jury is a recognized basis for granting a new trial. (Code Civ. Proc.,  657, subd. (2).) Here, however, the trial court impliedly found that Juror No. 10 had not committed misconduct by concealing bias during voir dire. And even if Juror No. 10 failed to fully disclose her previous similar lawsuit, it does not necessarily mean she concealed facts indicative of bias against plaintiffs, as is necessary to establish juror misconduct as a basis for a new trial. (Johns v. City of Los Angeles (1978) 78 Cal.App.3d 983, 996.) To justify a new trial based on jurors concealment of bias on voir dire, the evidence must show that at the outset of the trial the juror as a demonstrable reality [citation] 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]. (Ibid.)

In Jutzi v. County of Los Angeles (1987) 196 Cal.App.3d 637 (Jutzi), a juror in a medical malpractice case involving a county hospital was accused of misconduct. (Id. at p. 654.) The juror had informed another juror that personnel at the defendant hospital had taken very good care of her in the past and that she couldnt see any wrong that could be done by [the hospital]. (Ibid.) Another juror was told that the juror in question had been to the [defendant hospital] 17 times and they always treated me good [sic]. (Ibid.) On appeal, the plaintiff argued the jurors comments constituted misconduct because the juror concealed her bias on voir dire and improperly related her personal experience with the defendant hospital to her fellow jurors. (Id. at p. 655.) The appellate court disagreed, noting that during voir dire, the juror in question stated she had been at the hospital 18 or 19 years ago, during one of her pregnancies. (Id. at pp. 654, 656.) She also stated the experience would not affect her ability to render a fair and impartial verdict. (Id. at p. 654.) The plaintiffs trial counsel chose not to examine the juror further on the subject. (Ibid.) The trial court found the juror made no attempt to conceal her past involvement with [defendant hospital]. Once her experience was revealed it was the function of [the] plaintiffs attorney to explore the subject if he wished and decide for himself whether a potential for juror bias existed. [Citation.] We find no misconduct on the part of the juror. [Citation.] (Id. at p. 655.)

Here, as in Jutzi, Juror No. 10 neither concealed her spouses occupation nor their involvement in at least some previous litigation, including a fatal auto accident of a person referred to only as he. Here, as in Jutzi,Juror No. 10 affirmed during voir dire that despite her husbands occupation and previous litigation, she could be impartial in rendering a verdict. Plaintiffs trial counsel accepted Juror No. 10 on the panel without questioning her about her husbands occupation or the prior lawsuit. Under the circumstances, we conclude substantial evidence supports the trial courts implied finding that Juror No. 10s responses during voir dire did not constitute misconduct.

3. Juror No. 10s Alleged Bias During Deliberations

Plaintiffs also contend that Juror No. 10s bias against plaintiffs from the outset of the case was shown by the statements she made during deliberations, including repeatedly calling plaintiffs money hungry and asserting she would not award plaintiffs one penny. It is true that in some circumstances, [b]ias existing at the time of voir dire may be inferred from the utterances in the jury room. (Smith v. Covell (1980) 100 Cal.App.3d 947, 955 (Smith) [holding that prejudicial juror misconduct, including one jurors discussing his own back injuries in a case in which the plaintiff sought personal injury damages for back injuries, required reversal of the trial courts order denying a new trial].) Such an inference, however, is not always reasonable. (see, e.g., Tillery v. Richland (1984) 158 Cal.App.3d 957, 975-977 (Tillery).)

In Tillery,the plaintiff claimed, based on comments jurors had made during deliberations, that the jurors had committed misconduct by concealing bias. (Tillery, supra, 158 Cal.App.3d at pp. 971-972.) One juror had stated a reluctance to return a verdict against the defendant physicians because to do so would leave a permanent black mark against them and impair their right to earn a proper living, and another juror had stated that the plaintiff if given any kind of sizeable award, would undoubtedly take it and blow the money in Las Vegas on a good time. (Id. at p. 972.) In concluding that these statements did not show concealed bias, the court stated, The argument that bias existed on the part of the alleged declarants at the time of their voir dire is a conclusion of appellant without evidentiary value. [] . . . [T]he black mark against the doctors statement is no basis for speculation or assumption that the declaring juror actually entertained that bias in respect to all doctors at the time of the voir dire. The statement is obviously directed at the doctors in this particular case and to speculate that it was based on anything other than the evidence heard would be completely unwarranted. . . . [] In respect to the Las Vegas statement . . . [i]t is certainly not an indication of any preexisting bias and may well have been stimulated by the testimony and other evidence regarding the plaintiffs lively interest in having his wifes bills paid by the workers compensation carrier. (Id. at pp. 975-976; see also Ray v. Jackson (1963) 219 Cal.App.2d 445, 455-456 [declarations that one juror had stated she was always for the underdog and that she felt her relatives had not received a sufficient settlement in their own claim for damages was insufficient to show that the juror concealed bias during voir dire].)

Similarly here, Juror No. 10s statements during deliberations about plaintiffs being money hungry provide no substantial basis for inferring that Juror No. 10 harbored a bias against plaintiffs from the outset of the case; rather, the comment was made in response to Judiths own misconduct in approaching jurors during deliberations. Tellingly, rather than refusing to award plaintiffs one penny, Juror No. 10 was among the nine jurors who ultimately awarded plaintiffs damages. And, as defense counsel conceded during the hearing on the motion for new trial, no one ever suggested that plaintiffs werent in this case to get money. We conclude substantial evidence supports the trial courts finding that Juror No. 10 did not commit misconduct by harboring bias during deliberations.

4. Juror No. 10s Alleged Misconduct During Jury Deliberations

We next address the separate question whether Juror No. 10s discussion of her alleged past similar case during jury deliberations constituted misconduct. Jurors cannot, without violation of their oath, receive or communicate to fellow jurors information from sources outside the evidence in the case. (Smith, supra,100 Cal.App.3d at p. 952.) The [p]resentation to or reception by a jury of new evidencefrom sources outside the trial evidence constitutes misconduct. (McDonald v. Southern Pacific Transportation Co. (1999)71 Cal.App.4th 256, 263.) However, a jurorsdiscussion of his or her own personal experiencesduring the deliberation process does not necessarily constitute thepresentation of new evidence. Jurors do not enterdeliberations with their personal histories erased, inessence retaining only the experience of the trial itself. Jurors are expected to be fully functioning human beings,bringing diverse backgrounds and experiences to thematter before them. (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 741-742.) Jurors views of the evidence . . . are necessarily informed by their life experiences . . . . (In re Malone (1996) 12 Cal.4th 935, 963.)

Here, the jury was required to determine the compensation for plaintiffs intangible losses as a result of decedents death. Juror No. 8 the only juror to specifically identify the context in which Juror No. 10 raised any mention of a previous similar case in which she was involved stated that Juror No. 10 raised the issue after liability had already been determined with only calculation of damages left, and only after Judith approached the jurors in the hallway. Also, Juror No. 8 never heard Juror No. 10 mention a dollar figure relating to her own case, and none of the declarations points to any factual comparisons made by Juror No. 10 to her own similar case. The trial court accepted Juror No. 8s declaration as true, and we do not disturb the trial courts assessment of credibility. (Whitlock v. Foster Wheeler, LLC, supra, 160 Cal.App.4th at pp. 159-160.)

In English v. Lin (1994) 26 Cal.App.4th 1358, the defendant moved for new trial on the ground of jury misconduct based on the declaration of Juror L, who claimed that during a discussion of the plaintiffs loss of earnings, Juror F had discussed his brother-in-laws salary as a commercial artist a career to which the plaintiff had aspired before his injury. (Id. at pp. 1361-1363.) In concluding there was insufficient evidence of juror misconduct, the appellate court pointed out that the complaining jurors declaration lack[ed] specificity regarding the actual circumstances under which the statements were made. For example, it is unclear whether [Juror Fs] statements were offered to explain why [Juror F] found certain testimony credible or not credible, or a damage award too low or too high. (Id. at pp. 1364-1365.) The appellate court explained, Because of the lack of a specific context for [Juror Fs] statements, the trial court reasonably could have concluded that the declaration was insufficient to show that [Juror Fs] remarks were intended by him, or interpreted by other jurors, as additional evidence to consider in this case, as opposed to an explanation as to [Juror Fs] reasoning processes i.e., why [Juror F] believed or disbelieved certain witnesses or believed an award of damages would be appropriate or inappropriate or too low or too high. We also conclude that [Juror Ls] declaration lacks sufficient specificity to show the nature and extent of any open discussion about the subject of the plaintiffs loss of earning capacity, and whether any of the jurors deemed [Juror Fs] statements to constitute evidence on this point. Moreover, nothing in his declaration establishes any agreement, express or implied, to consider [Juror Fs] statements as evidence. In other words, the trial court reasonably could have concluded that the declaration was insufficient to establish that the jury violated the instruction to decide all questions of fact in this case from the evidence received in this trial and not from any other source, and that the jurors must not make any independent investigation of the facts or the law or consider or discuss facts as to which there is no evidence. . . . [Citation.] (Id. at pp. 1365-1366.)

Here, as in English v. Lin, nothing in the jurors declarations suggests Juror No. 10 intended to inject her own previous litigation into the deliberations as proof of any fact or that any of the other jurors interpreted her comments as proof of any fact. The trial court found credible the declaration of the jury foreperson stating that Juror No. 10 had not mentioned a specific dollar figure in mentioning her own prior litigation, and we defer to the trial courts finding with respect to the credibility of the declarations. (Enyart v. City of Los Angeles, supra, 76 Cal.App.4th at p. 507.)

5. Motion for New Trial on Ground of Insufficient Damages

Plaintiffs also moved for a new trial on the ground that damages had been insufficient as a matter of law. In support of this contention, plaintiffs relied on declarations of Juror Nos. 3, 7, and 9 that they allegedly had been influenced by Juror No. 10s improper remarks and that the damages awarded had been based on those remarks and on Juror No. 10s comparisons to her own previous similar case. The counter declaration of Juror No. 8 refuted those contentions and stated that damages had been calculated based on the evidence presented to us, including, but not limited to, the following facts: [decedents] limited earnings record; that he was not licensed in massage and that anyone could obtain his massage membership; that he was terminated for inappropriate touching and thereafter unemployed; that he had $35 in his checking account when he left Colorado; that his family actually supported him by paying for his trips to Hawaii and to Southern California for his sisters wedding; that he was placed in juvenile hall for striking his own mother; and that there was a gap of seven to 10 years in the testimony and in the photo montage in which the jurors were presented with no evidence regarding the quality and quantity of contact he had with his family, if any. The trial court rejected plaintiffs declarations and accepted the credibility of the declaration of Juror No. 8. Under the substantial evidence standard of review, that determination is conclusive. (Enyart v. City of Los Angeles, supra, 76 Cal.App.4th at p. 507.)

6. Insufficiency of Record to Establish Prejudice

Even if we were to conclude juror misconduct had occurred, we would nonetheless still affirm the trial courts ruling because the record is inadequate for us to find prejudice. In reviewing an order denying a new trial, we must review the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161.) Here, however, plaintiffs have failed to provide a complete record that would enable us to undertake such a review. The reporters transcript on appeal contains only the voir dire of Juror No. 10, certain pretrial motions in limine, the testimony of plaintiffs damages expert, arguments of counsel to the jury, jury instructions, a question from the jury during deliberations, the courts inquiry concerning Judiths contact with the jury, and the hearing on plaintiffs motion for new trial. To overcome the presumption that the order appealed from is correct, the appellant must provide an adequate record demonstrating error. (Kashmiri v. Regents of the University of California (2007) 156 Cal.App.4th 809, 849.) Failure to do so precludes an adequate review and results in affirmance of the trial courts determination. (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.) Because plaintiffs have failed to provide such a record, we need not consider further the merits of their claims.

IV. DISPOSITION

The judgment is affirmed. Costs to defendants.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

MCKINSTER

J.

GAUT

J.

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[1] For clarity and ease of reference, we use the first names of persons who share a surname. In doing so, we intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)

[2] The trial court sustained objections to those portions of the declarations that purported to give subjective evidence to impeach the verdict. Plaintiffs have not challenged the trial courts evidentiary rulings on appeal.

[3] During closing arguments, defense counsel stated: Do I give you a number? I dont know if you get to that. What is reasonable for these parents, 50 thousand, a hundred thousand? I think thats reasonable. I think, based on the evidence we have, I think thats a reasonable number, if you get there.

[4] Plaintiffs did not raise concealment of bias during voir dire as an issue in their motion for new trial, nor did they provide the trial court with a transcript of the voir dire proceedings to support such an argument. However, during argument of the motion, plaintiffs counsel and the court addressed the issue and impliedly found it meritless. Both parties have briefed the issue on appeal. We will therefore address the issue on the merits.

[5] During voir dire, the following exchange occurred between the court and Juror No. 10:

THE COURT: [W]hat does your husband do, maam?

A: Hes self employed. Hes owner-operator.

A: Of what?

A: Of a big rig.

THE COURT: Okay. How long has he been driving a big rig?

A: He just started his current job about three weeks ago. Prior to that he worked for a cement company. Prior to that his family owned a petting zoo and he drove the truck with the animals, probably most of his life.

THE COURT: And then, this is basically large trucks, I take it?

A: Yes, sir.

The court also questioned Juror No. 10 about previous litigation experience:

THE COURT: Have you or anybody close to you been involved in an auto accident which resulted in personal injuries or death?

A: Yes.

THE COURT: Tell us about it.

A: He was killed in a car accident going back up to Sacramento for a class reunion him and another person in another car were killed on impact. Their daughter was thrown from the car and Tammy his wife has spent quite a bit of time in Loma Linda Hospital. And her brother that was in the passenger seat also sustained serious injuries. I cant recall how many days at this time.

THE COURT: Do you know if there is any litigation resulted from that?

A: I know that Tammy had to go to court but they never they didnt prosecute.

THE COURT: Did you know what was the mechanism that caused the accident?

A: They dont know for sure. They are not sure if Tammy fell asleep or if there was a blowout.

THE COURT: There wasnt any civil suit, though, by anybody?

A: It was dropped.

THE COURT: All right. Any other instances where someone close to you has been involved in an auto accident with personal injury?

A: My 22 year old son who lost his license for a year because he had so many accidents. [] . . . []

THE COURT: Have you ever sued anybody or been sued?

A: We were sued but they dropped the case.

THE COURT: Whyd they sue you?

A: Said that this gentleman broke his ankle on our slide, and he was intoxicated. Apparently he said that his child was upset. She was at the top of the slide and she wouldnt come down. And he claimed that his ankle was broken.

But then, once the lawyer started investigating, there was no evidence of him, I believe, going to the hospital. I really dont know all the details. My husband was more involved because it was my husbands business and his fathers business.

Juror No. 10 was also questioned by plaintiffs trial counsel:

Q: Now, you stated your husband is a truck driver?

A: Yes.

Q: Okay. Now the defendant in this case is a truck driver. Do you think that would affect your ability to be fair; what do you think?

A: No

Q: So, if we were able to prove our case, put the witnesses on the stand, they come here, tell you the truth and we carry our burden, can I get a commitment from you to be fair and just?

A: Yes.