Harris v. County of Los Angeles

Filed 8/23/07 Harris v. County of Los Angeles CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

William F. Highberger, Judge. Affirmed.

Passman & Cohen, Sanford M. Passman; Law Offices of Marshall E. Rosenbach and Marshall E. Rosenbach for Plaintiff and Appellant.

Dwyer, Daly, Brotzen & Bruno, Toni Rae Bruno and John C. Wilson for Defendants and Respondents.

Appellant Ezekiel Harris sued the County of Los Angeles (County) and two deputy sheriffs resulting from the deputies conduct that caused him serious injury.[1] Part of the case was based on whether appellant, a mentally challenged individual, initiated a confrontation with the deputies, justifying their use of force. Following a 10-2 defense verdict, appellant challenges the trial courts denial of his motion for new trial. The motion was based on the alleged undisclosed bias of a juror against mentally challenged individuals, specifically that such individuals are violent. Appellant also seeks review of the trial courts denial of his request for an evidentiary hearing where the challenged juror would be called to testify. Concluding there was no error, we shall affirm the judgment.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

The complaint

The complaint alleged violation of civil rights, negligent supervision, assault and battery, false imprisonment, false arrest, and intentional infliction of emotion distress. The parties have not provided a transcript of the jury trial, except voir dire, so we take the facts as indicated in the complaint and statements made during the reported voir dire.[2] In August 2002, appellant, a 21-year-old African-American male who had suffered from organic brain damage since he was a young child and was mentally impaired, was walking from his mothers residence towards the special needs facility where he resided, when deputies stopped him and accused him of throwing a clear plastic bag containing illegal drugs. The stop was allegedly without legal cause and without a warrant. Because of his impairment, appellant did not understand the allegations, became scared, causing his behavior to become erratic. The deputies began a cursory search and forcibly grabbed appellant in an effort to apply their handcuffs.

Appellant protested until his protests were overcome by the deputies physical and verbal threats and shows of excessive and unjustifiable force. The deputies sprayed him with pepper spray three times; appellant ran and they chased him, calling for police assistance. Assistance arrived. Deputies repeatedly hit appellant in the face with their fists, tackled him to the ground and kicked him repeatedly in the rib cage while spraying him in the face with pepper spray and striking him with their flashlights. They overpowered him and placed him in a hobble restraint. Paramedics took appellant to the hospital, and he was eventually booked for alleged violations of the Penal Code.[3] The deputies conducted a search of the entire area and never located the alleged plastic container or any illegal drugs.

Voir dire

Before the prospective jurors were questioned, the trial court related a summary of the facts and stated the causes of action. The court remarked there would be [q]uestions which are up on the white paper there, having to do with whether youve had any experience with issues of mental retardation or mental disorders, as those issues will have some relevance in the case both as to damages and the testimony. In giving an example of answering the questions from his own experience, the judge asked question 8, Have you had personal experience with mental retardation or mental disorders, and answered, as if he were a prospective juror, Not through my family, but I had an assignment in child abuse as a new judge and those issues did come up from time to time in various contexts.

Various jurors expressed experience with mental retardation or mental disorders. For example, one stated he had been a psychiatric aide years before. Another had a sister who previously worked with mentally disabled children. One had limited experience with mentally disabled children when working in child care in the mid-to-late 80s. Another stated having acquaintance with people of mental retardation. One took a small art class with someone with mild case of Down syndrome and she was able to talk with her and stuff like that. Another dealt with parishioners with mental disorders and a homeless person around the church who had gone off her medications.

Appellants attorneys questions were geared more at experience with law enforcement and the jurors willingness to return a large verdict than to questions relating to experience with mental retardation or disorders. In contrast, much of respondents attorneys questions were geared to experience with mental issues.

After some initial questioning, the court emphasized that jurors must follow the courts instructions and set aside any particular expertise as a lawyer or a psychiatric social worker or anything learned outside the courtroom. The court reiterated that cautionary advice to a prospective juror whose mother worked in the medical field and whose father was a psychologist, both of whom talked about mental disorders and retardation as the juror was growing up.

Another juror had a degree in psychology. After questioning by the court, she revealed she thought she would be biased on the side of the plaintiff. A few jurors had volunteered for the Special Olympics.[4]

The juror challenged on appeal was seated late in the questioning. We set forth the entirety of her voir dire, which took less than a page in the reporters transcript:

My name is [juror number 9]. I work I live in Santa Monica. Im a registered nurse and I work in surgery at St. Johns hospital. [] I live alone. I dont have any children. And it was several years ago that I served on a jury. We did come to a verdict and it was criminal. I have no family. Ive never been arrested. And no one that Im close to has been arrested. My experience with mental health . . .  was when I did my nursing rotation and that was just, you know, B.A.

Lets see and no -- . . .  Number 9.

Immediately following the subject jurors answers to the questions posted in the courtroom, at the end of his initial questioning of jurors, appellants counsel asked Is there anything that anybody would like to say in open court that has not yet been said by you with respect to any of the questions that we have asked you in this courtroom that we have asked other prospective jurors in this courtroom today? and Anybody want to confess to an issue. Respondents counsel repeated the request of anything new or additional . . . that you feel it is important for us to know about your ability to be impartial to both sides. At that point, the juror who had revealed a bias for plaintiff because of his mental illness revealed a bias against law enforcement.[5]

Motion to vacate verdict and grant new trial

Appellants motion was based on information allegedly learned by his counsel following trial about juror number 9, who they claim concealed her biases about mentally challenged individuals, particularly indigent ones, as violent people; believed the proceedings were a big farce; and did not mention she had a friend, a fellow nurse, who had been bitten by a mentally challenged patient.[6] If the trial court would not grant a new trial, appellant sought in the alternative an order for the juror to appear for questioning regarding the statements reportedly made to appellants counsel.

Appellants attorneys, Sanford M. Passman and his partner H. Jason Cohen, filed declarations in support of the motion. They both related that they questioned juror number 9 in the hallway after the verdict. According to their declarations, she seemed hostile to both and insisted they were personally culpable for pursuing a matter that had no merit. Relevant to the issue of bias and nondisclosure, the declarations reported that she explained she had extensive experience with mentally challenged individuals in her capacity as a registered nurse and believed such individuals posed a very real and obvious danger to the public and themselves and that those of a lower socioeconomic status presented the most danger. Moreover, she was personally involved in an incident where a nursing colleague was bitten by an indigent person with diminished mental capacity and had either her arm, or a portion thereof, surgically amputated. According to Mr. Passman, the juror told him and Mr. Cohen that that specific experience was embedded in her mind at the time the evidence was presented by appellant, which led her to conclude that the evidence presented was unbelievable and rendered her verdict in accordance therewith. Both attorneys concluded by declaring they had no information or knowledge of this jurors predisposition prior to the jury reaching its verdict.

Co-counsel Marshall E. Rosenbach added that Passman called him with the information immediately after the verdict was read and Rosenbach had attempted to obtain a transcript of the voir dire. The reporter had not completed the transcript at the time of the motion for new trial.

The County objected to appellants declaration as inadmissible pursuant to Evidence Code section 1150, subdivision (a), [Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.][7]and filed an opposition including a declaration by the juror, set forth in detail below, denying the pertinent allegations by appellants counsel. Moreover, the County argued that appellant had failed to raise a presumption of prejudice.

Appellant objected to the jurors declaration and asked that it be stricken as tainted and procured in violation of Rule 5-320 of the State Bar Rules of Professional Conduct, proscribing certain contact between a member of the bar and a juror. Appellant also objected based on the jurors giving evidence of her own mental operations.

The court denied appellants motion on all grounds. The request for an evidentiary hearing was denied. The court observed that, first, the vote was ten to two so the subject jurors vote was not necessary to form a majority of nine in support of the verdict that was rendered . . . . In addition, the statements attributed to her by appellants counsel would be inadmissible and irrelevant because you dont look at the thought processes of the jurors because of the privileges attached there. . . . Furthermore, her own declaration, which the court concluded was properly obtained, shows she was exhausted and felt goaded by appellants counsel, though her characterization of the closing argument may be incorrect.[8]

This appeal from the judgment entered on July 5, 2005 follows.

DISCUSSION

1. The trial court did not err in denying the motion for new trial.

Juror misconduct is a ground for granting a new trial. Nondisclosure of actual bias can constitute misconduct (People v. Galloway (1927) 202 Cal. 81, 93 [in civil cases, false statements made by a juror on his voir dire examination furnish a sufficient ground for granting of a new trial]) but may or may not constitute prejudice. (Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 557.)

We review the trials decision regarding questions of historical fact for substantial evidence (People v. Nesler (1997) 16 Cal.4th 561, 582.) Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate courts independent determination. [Citations.] (Ibid.; accord People v. Ault (2004) 33 Cal.4th 1250, 1261-1265 [explaining standards of review for orders granting and denying motions for new trial.])
When an issue is tried on affidavits . . .  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. [Citations.] (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 108.)[9] As explained above, evidence of the mental processes of jurors is not generally admissible to impeach a verdict. There has long been an exception to the general rule in that affidavits of jurors may be used to set aside a verdict where the bias or disqualification of a juror was concealed by false answers on voir dire examination. (People v. Castaldia, 51 Cal.2d 569, 572 [335 P.2d 104].) (People v. Murphy (1973) 35 Cal.App.3d 905, 931. Accord 7 Witkin, Cal.Procedure (4th ed. 1997) Trial 388.)[10]

Assuming arguendo that the supporting declarations by appellants counsel were properly admitted, the trial court did not have to find them credible. And if those declarations were admissible to demonstrate juror number 9s allegedly concealed bias, so her opposing declaration was admissible to refute the allegation and contradict counsels declarations.[11]

The jurors declaration explained she was approached by appellants counsel after trial while she waited for another juror (who voted on the other side) and with whom she had become friendly. The challenged juror felt exhausted and drained. Nevertheless, one of appellants attorneys was in her opinion almost interrogating me about various aspects of the case. At times, he almost appeared to be goading me. She finally became somewhat impatient due to the fact that I was quite tired and told him that she did not like his closing argument in that it was an emotional appeal that seemed to insult her intelligence.[12]

Juror number 9 denied saying she had extensive experience with mentally challenged individuals in her capacity as a registered nurse and stated she in fact had no such extensive experience and the hospital where she works does not even have a mental health center. She had accurately and truthfully stated during voir dire that her only personal experience with the mentally challenged was during her nursing rotation.

Moreover, juror number 9 denied telling appellants counsel that the mentally challenged pose a very real and obvious danger to the public and themselves or that those mentally challenged individuals who were of a lower socioeconomic status present the most serious danger or anything about indigent individuals that suffer from diminished capacity.[13] Although admitting she told appellants counsel she had heard of an individual who bit a nurse, it was third-hand information she did not personally experience or observe and was not even in my mind while evidence being presented at trial. Furthermore, she did not know if that person was mentally challenged, if the person was in restraints, or the persons economic situation. She did not even know if the incident actually happened and she recalled the alleged incident only when counsel inquired about the restraint applied to appellant. Contrary to the declarations of counsel, she never told them she had any specific experience embedded in her mind that led her to conclude the evidence was not credible, nor did she tell them she rendered her verdict in accordance with a specific experience. She did not base her vote on such incident or event and it was not embedded in her mind or influencing her decision at any time.

The juror emphasized that during voir dire I truthfully answered the questions as I had and have no predisposition regarding diminished capacity individuals nor any specific experience to effect my ability to be neutral and unbiased and never told appellants counsel she had any predisposition. She denied ever hiding, concealing, or avoiding any matter prior to her selection as a juror and would have requested the opportunity to speak with the judge if that had occurred.

Moreover, she specifically denied any actual bias: I never possessed any pre-conceived ideas, bias or prejudice against [appellant.] In fact, during the initial portion of this case when the statement about the case and opening statements were made, I was more inclined to favor [appellant] since I viewed him as a victim. However, as the case progressed, I believed that the facts did not support [him], and as a result, the facts and the evidence were what I based my verdict.

The record supports the trial courts determination that the juror had not failed to disclose any material experience or bias and that no predisposition or bias affected her decision making.[14] (Fredrics v. Paige (1994) 29 Cal.App.4th 1642, 1647.) We therefore need not decide whether, had there been misconduct, the failure to disclose was prejudicial. (See English v. Lin, supra, 26 Cal.App.4th 1358, 1364, regarding the rules for determination of prejudice.) Under these circumstances, we find no error in denying the motion for new trial.

2. The trial court did not err in denying appellants request for an evidentiary hearing.

Pursuant to Code of Civil Procedure sections 657 and 658, an application for new trial in civil cases on the grounds raised by appellant must be made upon affidavits . . . . Our Supreme Court has read the statutes to require that a motion for new trial on grounds enumerated in the first four subdivisions of section 657 must be presented solely by affidavit. (Linhart v. Nelson (1976) 18 Cal.3d 641, 645.)[15] Thus, the trial court did not err in denying the request for an evidentiary hearing at which the juror would be questioned by appellant.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

BOLAND, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

[1] Several other deputies were initially named in the complaint. All but two are no longer involved in this litigation.

[2] The failure to provide a record of the testimony at trial makes a determination of the relevance of the jurors alleged nondisclosure problematic. The briefs of both parties apparently assume the relevance of appellants mental condition.

[3] It appears that appellant was later found not competent to stand trial and was diverted from the criminal justice system.

[4] The mother of one volunteer was a coordinator for special education students in Lincoln, Nebraska; and his step brother has Downs Syndrome. The sister of another volunteer was manic depressive on medication with MAO inhibitors.

[5] The court excused her and another juror, with no objection by counsel.

[6] Appellants motion also raised as error the receipt of testimony impairing the credibility of appellants expert witness. That ground is not raised on appeal.

[7] Evidence Code section 1150, subdivision (a), limits what can be presented in a jurors affidavit, which is allowed by Code of Civil Procedure section 657, paragraph 2 [Misconduct of they jury is a ground for a new trial; whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.] (Italics added.)

[8] Appellants counsel did not suggest she lied in the moving papers. Nor did she lie, except by omission, in her comments during voir dire, an omission sufficient to disqualify her as a juror and give rise to a new trial. Rather, the argument was that she omitted to disclose a predisposition and sanitized her conversation with appellants counsel.

[9] The undisclosed bias allegedly expressed by several majority jurors in Weathers, supra, 5 Cal.3d 98, 106-107, according to affidavits by dissenting jurors, was egregious. Juror Anderson telephoned his own physician and obtained his opinion, which was communicated to the other jurors, that viral encephalitis was an incurable and fatal disease, and that the decedent . . . was doomed from the beginning so, what were we doing here, and why didnt we get this thing over with. Juror Carruthers led a movement to impeach the previously chosen foreman and successfully campaigned to have himself elected as foreman. After his election, he shut off discussion. Carruthers also brought up that the plaintiff was a black woman and stated that where he came from, they don't even let a black woman into the courtroom. Juror Mallinson told the jury that if we voted for the plaintiffs in this case the hospital rates at Kaiser Hospital would go up, and we would all have to pay more money for hospital rates. In addition, she constantly told everyone on the jury how good Kaiser Hospital was and that we cant find them guilty in this case because if we do, we would be attacking it and endangering the whole hospital system. Juror Bonsell told the other members of the jury that he had a brother whose two children had been born at Kaiser Hospital, and that Kaiser Hospital was a good hospital.

[10] In general, [d]eclarations recounting statements, conduct or events open to sight, hearing, and the other senses and thus subjectto corroboration are admissible to establish juror misconduct. Declarations submitted as proof of an individual jurors subjective reasoning processes, which can be neither corroborated nor disproved, are not. [Citation.] (English v. Lin (1994) 26 Cal.App.4th 1358, 1364.)

[11] We reject appellants argument that the jurors declaration should have been stricken pursuant to Rules of Professional Conduct 5-320 based on the contact of respondents attorney with the juror during which she was shown the declarations of appellants counsel. After discharge of a jury, Rule 5-320(D) of the State Bar Rules of Professional Conduct states a member shall not ask questions of or make comments to a member of that jury that are intended to harass or embarrass the juror or to influence the jurors actions in future jury service. Once appellant filed his motion for new trial alleging bias by a particular juror, respondent is permitted to contact the juror so long as the contact is in a manner not likely to influence the state of mind or actions of the juror in connect with present or future service. (Rules of Prof. Conduct, rules 5-320(D) and (E).) The contact in this case does not do so, and the authority cited by appellant is inapposite and/or from jurisdictions other than California.

[12] The juror then hypothesized that counsel may have had his ego bruised by her comment. At any rate portions of his declaration simply do not accurately reflect the conversation that we had.

[13] Indeed, she stated I do not use the term indigent in my typical vocabulary and I find it suspect that some would accuse me of utilizing such language.

[14] In his opening brief, appellant quoted the trial court observing that the jurors statements would tend to indicate she did lie in voir dire (italics added) and asserted the trial court did not believe the juror. In its brief, respondent explains the context of the statement, the trial courts failure to determine the juror lied, and the inference that she told the truth. Appellant did not contest this explanation in his reply brief.

[15] The rule does not apply in criminal cases, where the trial court has discretion to allow live witnesses. (People v. Hedgecock (1990, 415 [when a new trial motion in a criminal case is based on allegations of juror misconduct, the trial court may conduct an evidentiary hearing to determine the truth of the allegations].)