Carmona v. Developers Diversified Realty

Filed 8/28/09 Carmona v. Developers Diversified Realty 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 for the County of Los Angeles. Joseph F. De Vanon, Judge. Affirmed.

The Law Office of John Derrick and John Derrick for Plaintiff and Appellant.

Mendes & Mount, R. Joseph Decker and Tony F. Farmani for Defendant and Respondent.

____________________________________

SUMMARY

The jury in a slip-and-fall premises liability case returned a 10-2 defense verdict. Plaintiff Corine Carmona sought a new trial on the ground of jury misconduct. Carmona presented declarations from the two dissenting jurors, stating that one or two unidentified jurors went to the site, which was in a mall two blocks from the courthouse, to take a look, and reported to the rest of us that it did not appear to them that there was a dangerous condition from what they saw. The defense countered with two juror declarations stating, among other things, that none of the jurors told the others that he or she had inspected the area in question. The trial court found there was no misconduct, and denied Carmonas motion for a new trial. Carmona appeals, arguing there was prejudicial jury misconduct. We find no merit in Carmonas contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Carmona brought a premises liability action against Developers Diversified Realty (DDR), the operator of the Paseo Colorado Mall in Pasadena. Carmona went to the mall on May 29, 2005, with her husband for a 10:00 a.m. sales presentation concerning a vacation timeshare at Shell Vacations. It was drizzling that morning, and the flooring at the mall included polished marble tiles interspersed with concrete. Carmona and her husband were unfamiliar with the mall and the exact location of their destination. According to Carmona, her husband obtained directions by telephone, and Carmona, seeing the tall building to which they had been directed, was looking up and pointing it out to her husband when she fell, on a wet marble tile at the fountain area of the Garfield Promenade, and injured her knee. Carmonas husband helped her up and, after she composed herself, they proceeded to Shell Vacations. They attended the sales presentation and purchased a timeshare, remaining at Shell Vacations until 4:00 p.m. Then, they went to the malls security offices to report the incident. Four months later, this lawsuit was filed.

The matter went to trial. The defenses theory of the case was that there was no fall, and, if there was, it was Carmonas fault. The marble flooring on which Carmona said she slipped had been there for four years, with no reports of any falls, and DDRs custom and practice when it rained was to put out warning cones in the area. Carmona, on the other hand, sought to show there were no, or inadequate, warning cones in the area, and that in any event, the marble areas were unreasonably dangerous when wet and could not be made safe by a warning (and instead it was necessary either to change the surface of the marble or to block off the marble areas entirely). After the incident, DDR took remedial measures to make the marble portions of the flooring safer, and, consonant with the law, the trial court refused to allow evidence of the remedial measures to be presented. A photograph was admitted into evidence, for the purpose of showing the view of a person walking from a hallway into the promenade area, which apparently showed flooring that looked like cement rather than marble.[1]

After seven days of trial and a day of deliberations, the jury returned a 10-2 defense verdict. Carmona sought a new trial on the ground of jury misconduct. In support of her motion, she submitted declarations from Charoletta Ransom, an attorney who attended the entire trial (in an unspecified capacity), and from two jurors, Daniel Hernandez and Sheliah Bough. The defense countered with declarations from DDRs lawyer, R. Joseph Decker; Michael De Leon, a DDR representative who attended the trial; and two jurors, Miriam Ben-Ora and Luci Chen. When the court ruled on Carmonas motion, it discount[ed] the declarations of all counsel [including Ransom], primarily because they [were] based almost exclusively on hearsay testimony . . . .[2] The court stated it made its determination exclusively on the declarations filed by the named jurors . . . .

The declarations presented by Carmona included the following statements from the two jurors who dissented from the verdict:

        Hernandez stated that [t]he basis of the jurys verdict was that there was no slip factor causing the fall, which was not consistent with [Carmonas] version of the incident. He further stated that approximately two of the jurors, whom he did not identify, went to the site [which was two blocks from the courthouse] to take a look, and [t]hey reported to the rest of us that it did not appear to them that there was a dangerous condition from what they saw.

        Hernandez stated that Carmonas expert testified at trial that the marble flooring was a dangerous condition when wet, but that the inspections by the jurors led them to the conclusion that there was no dangerous condition as the surface did not appear to have a slip factor.

        Hernandez also stated that Carmonas expert testified that the mechanics of the fall caused Carmona to fall forward onto her knees, and there was no contradictory testimony, but during deliberations two of our jurors said they thought falls do not happen that way. Their view was that one slips backwards and they thought [Carmona] should not be believed that she fell forward.

        Juror Sheliah Bough likewise stated that [t]he basis of the jurys verdict was that there was no slip factor causing the fall. Bough said she [knew] of one juror who went to the subject mall during lunch time. The juror had been curious as to how the fall had happened, and as the site was just two blocks from the courthouse, the juror went to the site to take a look. The juror reported to the rest of us that it did not appear that there was a dangerous condition from what the juror saw.

        Like Hernandez, Bough stated that Carmonas expert testified at trial that the marble flooring was a dangerous condition when wet, but that inspection by the juror led them [sic] to the conclusion there was no dangerous condition as the surface did not appear to have a slip factor.

The juror declarations presented by DDR included the following statements:

        Miriam Ben-Ora stated that, when deliberations began, and prior to discussing the case, the foreperson took a vote on the questions on the special verdict form. The vote on whether DDR was negligent was answered no by a 9-3 vote.

        Ben-Ora stated that the primary topic of discussion throughout the deliberations was whether Carmona slipped or fell. She said that the jurors agreed that if Carmona fell, it could not have been the defendants fault, and that on the question whether she fell, the jurors also discussed the fact that the testimony of the two safety experts was contradictory.

        Ben-Ora further stated that it was obvious during the initial deliberations that the general consensus was that [DDR] did not do anything wrong.

        Ben-Ora also stated she was in the jury room during the entire time the jury was deliberating, and never heard anyone report that they had gone to the Paseo Colorado mall to test the flooring material, or express an opinion on the slipperiness of the flooring material. In fact, the jurors did not discuss the nature of the flooring material at all. Again, the primary discussion was whether Ms. Carmona slipped or tripped.

        Juror Luci Chen stated that, before deliberations began, the judge specifically addressed the jury and told us that we were allowed to visit the Paseo Colorado mall during our free time but that while there we were not to conduct any inspections or experiments concerning the slipperiness of the marble floor area in question.

        Like Ben-Ora, Chen said that the jury, after agreeing on a foreperson and without specifically discussing the evidence, began by voting on the questions on the special verdict form, and voted 9-3 in favor of DDR on the question whether DDR was negligent. However, when some of the jurors who voted that there was no negligence on the part of [DDR] realized that this would end the deliberations, they wanted to further discuss the case.

        Chen stated that during the deliberations, none of jurors told the other jurors that they inspected the area in question. Further, no juror told the other jurors that, based on any inspection they made, that there was no dangerous condition at the Paseo Colorado mall. No decisions were made by the jury based on any inspections of the property.

        The 10-2 verdict, Chen said, was based on our conclusion that the owner of the Paseo Colorado mall took adequate safety precautions and therefore was not negligent.

        Chen stated that [t]he jurors also disbelieved Ms. Carmonas testimony that she slipped, yet fell forward. The jurors generally agreed that it was unlikely that a person would slip and fall forward. If Ms. Carmona fell forward, we concluded that she tripped, which would not have been caused by a slippery condition.

        Chen also stated that juror Sheliah Bough, who voted in favor of Carmona, stated numerous times during deliberations that [DDR] should pay damages simply because [DDR] had deep pockets and could afford to pay.

The trial court denied Carmonas motion for a new trial, stating in its minute order that [t]he Court does not find jury misconduct. At the hearing on the motion, the court stated as follows:

        The first thing is that I am not prepared to find there was jury misconduct in this case.

        [T]here was never, to my recollection, there was never a request in the course of this case that the court ordered the jurors not to go down to the mall area. I dont believe that request was ever made. I know that order was never made. [] The jurors were however told by myself that they could not go down, they were not investigators, they were not detectives. They could not go down and conduct experiments. They could not go down and make measurements. [3]

        Whether some jurors walked through the mall and looked at the area, or were cognizant of the area, that may well have happened. If that[] somehow became a focal point in discussions, I guess it might require more follow-up with the other jurors. I dont have any evidence of that. I am not prepared to make that finding.

        Bear in mind [Carmonas] expert testified that the surface of this particular marble was fine except when it was wet. It was only when it was wet that it provided this hazardous condition. [] When the jurors were down there, they werent down in any inclement weather or wet conditions. So, if they did go down and looked at this marble surfacing they would have seen what your expert already told them was that the surface was fine except in inclement weather. I dont see there is any residual negative effect that flowed to [Carmona].

        I dont know whether the jurors rejected the idea or the notion that [Carmona] fell, or found that the defense had taken adequate steps to make the area safe. [] I thought the declarations filed by the defense, or in support of the defense position by the defense jurors, I thought were more specific and more explicit in their wording than the other declarations. Further, [t]o the extent that any of those declarations were based on hearsay, . . .  third party statements, I discounted that, and [t]o the extent that some of the declarations supplied requested the court to speculate as to what the jurors were thinking when they were in the jury room, I discounted all that. (See Evid. Code, 1150, subd. (a).)

        The court made its [] determination exclusively on the declarations filed by the named jurors, and found that the testimony given by the jurors in support of the defense position to be the declarations which the court found to be more credible.

Carmona filed a timely notice of appeal.

DISCUSSION

We conclude there is no basis for overturning the trial courts denial of Carmonas motion for a new trial.

1.      The applicable legal principles.

Jurors may not receive or communicate to fellow jurors information from sources outside the evidence presented in court, and [i]f they do, they are guilty of misconduct. (English v. Lin (1994) 26 Cal.App.4th 1358, 1363-1364.) The party moving for a new trial on the ground of juror misconduct must establish both that misconduct occurred and that the misconduct was prejudicial. (Ovando v. County of Los Angeles(2008) 159 Cal.App.4th 42, 57 (Ovando).) If juror misconduct is found, the misconduct gives rise to a presumption of prejudice, but the presumption may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing courts examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416, 417 (Hasson).) Factors to be considered in determining whether a presumption of prejudice has been rebutted include the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued. (Id. at p. 417.)

In determining whether misconduct occurred, we defer to the trial courts findings of historical fact and credibility determinations if they are supported by substantial evidence. (Ovando, supra, 159 Cal.App.4th at p. 59.) Whether prejudice arises from juror misconduct is a mixed question of law and fact subject to an appellate courts independent determination. (People v. Leonard (2007) 40 Cal.4th 1370, 1425.) The reviewing court independently determine[s] whether, from the nature of [the  juror] misconduct and all the surrounding circumstances, there is a substantial likelihood that the misconduct was prejudicial and thus prevented the complaining party from having a fair trial. (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 626.)

2.      This case

In this case, the trial court found that there was no jury misconduct and that, even if jurors did go to the mall and look at the marble surfacing, I dont see there is any residual negative effect that flowed to [Carmona] i.e., no prejudice. We conclude the trial courts ruling was correct on either ground.

As to whether or not there was misconduct, the trial court could properly refuse to credit the testimony of jurors Hernandez and Bough that other jurors went to the site to take a look, and [t]hey reported to the rest of us that it did not appear to them that there was a dangerous condition from what they saw. Hernandez said two jurors went to the site, while Bough said she knew of one; Hernandez said both of them reported their impressions to the rest of the jury, and Bough said one of them did so. Neither Hernandez nor Bough identified the offending juror or jurors, either by name or by description of any sort. Juror Chen contradicted Hernandez and Bough, stating that none of jurors told the other jurors that they inspected the area in question, and juror Ben-Ora said that she never heard anyone report that they had gone to the Paseo Colorado mall to test the flooring material, or express an opinion on the slipperiness of the flooring material. The trial court expressly found that the declarations of Ben-Ora and Chen were more specific, more explicit, and more credible, and we cannot quarrel with that determination. (See Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 108 [observing, where two sets of juror declarations were directly at odds on some points, that [w]hen 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].) In short, the trial court reasonably could have concluded from the admissible evidence that no jurors actually inspected the site of the incident.[4]

But even if we assume that one or two jurors went to the site to take a look, and therefore receive[d] . . . information from sources outside the evidence presented in court (English v. Lin, supra, 26 Cal.App.4th at p. 1363), the presumption of prejudice that arises from such misconduct has been rebutted, because our examination of the record shows there is no reasonable probability of actual harm to the complaining party resulting from the misconduct. (Hasson, supra, 32 Cal.3d at p. 417.) Using the factors identified in Hasson for determining whether a presumption of prejudice has been rebutted (ibid.), one can only conclude the misconduct alleged was not prejudicial. First, the evidence that any misconduct occurred is weak, at best. Second, the nature and seriousness of the misconduct (ibid.) suggest prejudice is unlikely. The nature of the misconduct is entirely ambiguous. For all we know, the jurors merely walked past the site, and certainly there is no evidence they stopped or investigated. Even Carmona concedes those jurors did not share their impressions, if any, with the other jurors.[5] And third, the probability that actual prejudice may have ensued (ibid.) is nil. As the trial court pointed out, the jurors could not have learned anything harmful to Carmonas case by observing the marble at the mall, because any such observations did not take place during inclement weather. The evidence was undisputed that there was no problem with the marble surfaces when they were dry; even Carmonas expert so testified. There was no dispute that the marble surfaces were slippery when wet, at least to some extent; even DDRs former operations manager, as well as another project manager at the mall, so testified.[6] That is, after all, why DDRs custom was to place warning cones in the mall when it rained and when rain was in the forecast. In addition, there was a photograph in evidence, though admitted for another purpose, that showed the flooring after it had been changed by DDR to make the marble portions safer, and presumably all the jurors saw that photograph. Under these circumstances, it is hard to see how a jurors observation of the accident site during dry weather could conceivably taint the observing jurors assessment of the evidence in the case. Accordingly, we conclude from our review of the record that there is no reasonable probability of actual harm to [Carmona] resulting from the misconduct.  (Ibid.)

DISPOSITION

The judgment is affirmed. Developers Diversified Realty is to recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BENDIX, J.*

We concur:

RUBIN, Acting P.J.

FLIER, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] The court and counsel also discussed a photograph that was used with a witness (Defendants Exhibit 130) for the purpose of showing the location of a stairway, and which Carmonas counsel said was left in the view of the jury; this photograph also showed the changes to the pink marble (a surface that should not have been slipped on). This may be the same photograph described in the text, but the record is not clear on the point, and Exhibit 130 is not in the record.

[2] Ransoms declaration included statements that [t]he basis of the jurys verdict was that there was no slip factor causing the fall, and that she overheard several jurors in the elevator discussing that during deliberations, approximately four (4) of the jurors said that they had been curious as to how the fall had happened, and each went to the site to take a look, and reported to the rest of the jurors that it did not appear to them that there was a dangerous condition from what they saw. Deckers declaration stated that after the jury was excused, he saw Ransom speaking with juror Daniel Hernandez, and heard Hernandez talking about some of the jurors going to the Paseo Colorado mall. Decker asked Hernandez whether anyone conducted experiments concerning the slipperiness of the floor materials while at the mall, and Hernandez replied that he did not know whether this happened. Decker also stated that he was in the elevator with Ransom and the jurors during the conversations Ransom described in her declaration, and that the jurors did not say anything about how some jurors had gone over to the Paseo Colorado mall to take a look to determine for themselves whether a dangerous condition existed. Those statements simply never occurred. The declaration from De Leon stated that he heard the conversation between Decker and Hernandez, and described the conversation as Decker did.

[3] While the jury was still deliberating, Carmonas counsel told the court that he had seen one juror across the street from the mall, and asked the court to order DDR to preserve videotapes of the Garfield Promenade, between the hours of noon and 1:30 p.m. during the trial and two hours following the breaks in the trial. The court refused, stating that: First of all, I havent ordered the jurors not to go to the mall. They havent been ordered to do that. They have been told not to do any investigations. I am not going to require that the defendant to do surveillance on the jurors . . . . The court further said, [The jurors] have a right to walk through the mall. They can have lunch there every day. Its not a violation of any court order.

[4] Carmona argues that the trial court denied the new trial motion on the incorrect basis that it had never ordered the jurors not to visit the scene of the accident (so the visits did not constitute misconduct). Carmona misconstrues the trial courts statements. Of course, the trial court did instruct the jurors not to visit or view the scene of the event involved in the case, and [i]f you happen to pass by the scene, do not stop or investigate. When it denied Carmonas new trial motion, the court merely said there was never a request for an order, or an order, that the jurors were not to go down to the mall area. As the court stated at one point, They can have lunch there every day. The courts statements are not inconsistent with its rejection of the misconduct claim when, at most, the Hernandez and Bough declarations supported a conclusion that one or two jurors walked through the mall and looked at the area, or were cognizant of the area . . . .

[5] Carmonas opening brief states that she accepts, for purposes of this appeal, that juror visits to the site were not the subject of juror deliberations; instead she asserts the visits were in themselves misconduct. (This is a change from her position before the trial court; in her reply to DDRs opposition to her motion for a new trial, Carmona stated that the juror visits took place before deliberations and this by itself, albeit misconduct, was not the basis for [Carmonas] motion. Rather, it was the efforts of those jurors who had visited the scene to improperly persuade other jurors to base their decision on their own personal opinion, thus improperly going beyond the evidence presented at trial.)

[6] Carmona claims the unidentified jurors who visited the site probably assumed that the surface they saw was the same as that on which Carmona had slipped, and it was not the same, because of the remedial measures unknown to the jury. And, because the jurors saw there was no shiny surface, Carmonas credibility was damaged without the possibility of repair. This is pure speculation. In any event, there was no serious dispute at trial that the marble surface on which Carmona slipped in fact had a glossy finish, was slippery when wet, and was not slippery when dry, so it is difficult to see how a view of the changed, duller surface could have affected Carmonas credibility. Certainly there is no reasonable probability that it did so.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.