Gustave v. Colmenares
Filed 8/8/12 Gustave v. Colmenares CA4/3
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opinion has not been certified for publication or ordered published for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
THREE
TINA GUSTAVE,
Plaintiff and Respondent,
v.
MARIA EUGENIA COLMENARES,
Defendant and Appellant.
G045201
(Super. Ct. No. 30-2009-00117777)
O P I N I O N
Appeal from orders of
the Superior Court
of
County, B. Tam Nomoto Schumann, Judge. Affirmed.
Ford, Walker, Haggerty
& Behar, Stephen Ward Moore, Maxine J. Lebowitz and Donna Rogers Kirby, for
Defendant and Appellant.
Purcell Law and Chris
Purcell; and Kristen Martin, for Plaintiff and Respondent.
INTRODUCTION
In this personal injury
case, we are called upon primarily to determine whether juror declarations may
be used as admissible evidence to support a motion for a new trial based on
juror misconduct. Ever since the California Supreme Court
handed down the leading case on this issue, People
v. Hutchinson (1969) 71 Cal.2d 342 (Hutchinson),
courts have struggled to determine whether such declarations recount “overt
acts” or “subjective mental processes,” evidence of the former being admissible
and of the latter inadmissible. The
trial court in this case decided that the declarations were inadmissible and
denied the part of a motion for new trial
based on juror misconduct.
Portions of the
declarations arguably gave evidence of admissible “overt acts.” Because the trial court stated what its
ruling would be if the declarations had been admitted, however, we affirm the
order denying the motion for new trial.
The defendant also failed to present evidence of error regarding
excessive damages for pain and suffering.
Accordingly, we also affirm the denial of the motion on the basis the
damages were excessive.
FACTS
Maria Eugenia Colmenares’ SUV rear-ended Tina Gustave’s car on February 9, 2007. Liability was undisputed. The chief issue at trial was Gustave’s
non-economic damages for past and future pain and suffering from injury to her
neck.
lost earnings, or damage to her car.
severity of the injury to her neck and also about whether her neck problems
predated the accident. Both sides called
medical experts as witnesses, and Gustave, her daughter, her husband, and a
friend testified about the pain she had been experiencing and the limitations
on her activities since the accident.
The jury returned a verdict in Gustave’s favor, awarding her $200,000
for past pain and suffering and $1,350,000 for future pain and suffering.
Colmenares moved for a
new trial on the grounds of jury misconduct and excessive damages. She obtained declarations from two of the
jurors explaining how they had arrived at the verdict. According to these declarants, the jury
Gustave earned $50,000 per year. The
jury multiplied this amount by four years (the amount of time between accident
and trial) to arrive at the past pain and suffering damages and by 27 years
(Gustave’s assumed life expectancy) to determine the future award.
trial.) Gustave obtained a
counterdeclaration from one of these same jurors (who was also the jury
foreman) that someone mentioned to the jury Gustave probably earned $50,000 per
year. The counter-declarant also stated
that while the jury used the presumed yearly earnings as its basis, the award
was for pain and suffering, not lost earnings.
The trial court denied
the motion for a new trial for jury misconduct.
The court ruled the juror declarations were inadmissible under Evidence
Code section 1150, subdivision (a), because they were confined to the mental
processes of the declaring jurors in arriving at a verdict. But the court also ruled that, even if the
declarations were admissible, the motion would still be denied because the
counterdeclaration stated the jurors were aware they were awarding damages for
pain and suffering, not lost future earnings.
Colmenares has appealed
from the order denying the motion for new trial after judgment on the grounds
of both juror misconduct and excessive damages.
DISCUSSION
order denying a motion for a new trial is not itself appealable. We review the order as part of the
judgment. (Walker v. Los Angeles County Metropolitan Transportation Authority
(2005) 35 Cal.4th 15, 19.) Our task on
reviewing the denial of a motion for a new trial on the grounds of juror
misconduct is to examine the entire record, including the evidence, and to
determine independently whether an act of misconduct occurred and, if so,
whether the act prevented the moving party from having a fair trial. (Iwekaogwu
v. City of Los Angeles (1999) 75 Cal.App.4th 803, 818; see also
160 Cal.App.4th 149, 158 (Whitlock).)
Misconduct
Under Code of Civil
Procedure section 657, subdivision 2, a court may grant a new trial on the
grounds of “misconduct of the jury.”
Evidence Code section 1150, however, limits the kind of evidence a court
may admit “upon an inquiry as to the validity of a verdict . . . .” 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.” Evidence is not
admissible, however, “to show the effect of such statement, conduct, condition,
or event upon a juror either in influencing him to assent or dissent from the
verdict or concerning the mental processes by which it was determined.” (Evid. Code, § 1150, subd. (a).) According to the statute, evidence of
statements, etc., likely to influence
the verdict improperly is admissible, but evidence showing that statements,
etc., actually influenced a juror’s
vote or mental processes is not.
The distinction between
likely-to-influence admissible evidence and actually-influencing inadmissible
evidence may account for the resort to the rebuttable presumption of prejudice
from jury misconduct. (See
150, 156 (Honeycutt).) If some statement or conduct occurred that
was likely to influence the verdict improperly, the moving party does not have
to show it actually did. Prejudice is
presumed. The presumption of prejudice
coupled with the statutory language, however, puts the party opposing the
motion for a new trial in something of a bind.
In order to rebut the presumption, the opposing party must show that the
statements or conduct did not affect
the verdict. (See In re Stankewitz (1985) 40 Cal.3d 391, 402-403 (
prohibits the admission of the most obvious kind of rebuttal evidence –
evidence showing the statements or conduct had no effect on the jurors’
decision or their mental processes. (See
Hasson v. Ford Motor Co. (1982) 32
Cal.3d 388, 412-413 [evidence of juror inattention admissible; evidence from
jurors that they were paying attention not admissible].)
The seminal case on
Evidence Code section 1150, Hutchinson,
supra, 71 Cal.2d 342, draws the line between admissible and inadmissible
evidence in a different place.
name="_ftnref4" title="">[4] Instead of distinguishing between
likely-to-influence statements and conduct and actually-influencing statements
and conduct, Hutchinson distinguishes
between “proof of overt acts, objectively ascertainable” and “proof of the
subjective reasoning processes of the individual juror, which can be neither
corroborated nor disproved . . . .” (
349.) The former is admissible; the
latter is not. “The only improper
influences that may be proved under [Evidence Code] section 1150 to impeach a
verdict, therefore, are those open to sight, hearing, and the other senses and
thus subject to corroboration.” (
juror’s subjective reasoning processes inadmissible; instead, it prohibits
evidence of the effect of a statement, conduct, condition, or event on a
juror’s mental processes. This is not
the same thing.
The Hutchinson rule is now firmly entrenched in California
jurisprudence. We therefore follow it as
best we can. (Hutchinson, supra, 71 Cal.2d at p. 348 [Legislature has not
preempted field].)
Although our Supreme Court
has referred hopefully to a “bright line” or a “clear line” between overt acts
and subjective reasoning processes (People
v. Romero (1982) 31 Cal.3d 685, 689; Hasson
v. Ford Motor Co., supra, 32 Cal.3d at p. 414), in practice the line has
not been so easily discernible. One
reason the Hutchinson formula has not
laid the problem to rest may be that “overt” and “subjective” are not mutually
exclusive, opposites, or on either end of a continuum. A statement can be both overt and subjective: “Although I think the evidence shows this
defendant is guilty beyond a reasonable doubt, I am going to vote to acquit
anyway because I did not like the way the prosecutor cross-examined the
defendant’s mother.” Making such a statement
in the jury room is both proof of the speaker’s subjective reasoning process
and an overt act, objectively ascertainable and subject to corroboration. In fact, a jury deliberation may be described
as a series of overt acts by which jurors reveal their subjective reasoning
processes.
We thus turn to the
cases to try to discern a pattern for finding evidence either admissible or
inadmissible to support an inquiry into the validity of a verdict. The easy ones are, unfortunately, few and far
between. For example, a court had no
trouble admitting, as evidence of an “overt act,” a declaration stating a juror
had been reading a novel during the trial.
(Hasson v. Ford Motor Co., supra,
32 Cal.3d at p. 410.) The overt act in
the jury to hurry up and reach a verdict.
(Hutchinson, supra, 71 Cal.2d
at p. 346, fn. 1.) Most commonly,
however, the losing party seeks to admit evidence of statements made by jurors
during deliberations. As courts have
observed, classifying statements as overt acts or subjective mental processes
has proven to be most difficult. (See,
e.g., Stankewitz, supra, 40 Cal.3d at
p. 298; Grobeson v. City of Los Angeles,
supra, 190 Cal.App.4th at p. 787.)
The communications and discussions are “overt acts,” “open to sight
[and] hearing and thus subject to corroboration.” The information or ideas communicated,
however, reflect subjective mental processes.
Is evidence of these communications or discussions admissible or
not
Courts seem to be willing to admit
declarations describing statements such as the one recounted in
robbery trial instructed the rest of the jury on the elements of robbery,
basing his remarks on his 20-plus years of experience as a police officer. (Stankewitz,
supra, at p. 396; see also DiRosario
v. Havens (1987) 196 Cal.App.3d 1224, 1237-1238 [foreman told jurors judge
could reduce excessive verdict]; McDonald
v. Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, 262-264
[juror made statements about railroad crossings based on professional
experience]; Whitlock, supra, 160
Cal.App.4th at pp. 154-156 [juror in asbestos case told others of experiences
with naval cleaning and equipment replacement procedures].)
Along the same lines are
cases in which someone has blown the whistle on a juror who has consulted some
outside source – such as an attorney (Honeycutt,
supra, 20 Cal.3d at p. 157), a physician (Walter v. Ayvazian (1933) 134 Cal.App. 360, 363), or a pastor (
307) – or who has conducted an outside experiment.
[juror spoke to Edison employee about whether power line could set tree limb on
fire]; Smoketree-Lake Murray, Ltd. v.
Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724, 1745-1746
[juror conducted demonstration regarding pouring concrete in jury room].) In Karlsson
v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, declarations regarding one
juror’s visit to a Ford dealership to inspect seatbelts and his report to the
jury were admitted into evidence. (
Cal.App.4th 919, 932-933 [re-creation of police hold on prisoner].) The standard jury instructions explicitly
command jurors not to discuss the case with outsiders or to do their own
research (see, e.g., CACI No. 5000), so courts become particularly exercised
when they receive evidence of jurors disregarding these instructions.
For example, in
the jury foreman had consulted an outside attorney regarding sentencing, even
though the foreman did not communicate the conversation between himself and the
attorney to the other jurors. To
determine whether the presumption of prejudice had been rebutted, the Supreme
Court delved deeply into the foreman’s mental processes, interpreting his
questions to the lawyer to mean that he might be “contemplating a conviction of
involuntary manslaughter . . . , but that he was concerned . . . that if [the defendant]
were convicted of such lesser manslaughter charge he might escape state
prison.” (Honneycutt, supra, 20 Cal.3d at p. 157.) Although no evidence suggested the foreman
had mentioned the attorney’s remarks to the other jurors, “[n]everthess the errant
juror was the foreman whose perceptions and conclusions may often sway other
jurors.” (Id. at p. 158.) His
discussion with the attorney, even though kept to himself, “in clear violation
of the trial court’s admonitions interjects outside views into the jury room
and creates a high potential for prejudice. . . . [W]e cannot condone a practice whereby a
juror receives outside counseling relative to the applicable law, as to do so
would subordinate the court’s evaluation of the law to that of the juror’s
outside source . . . .” (
The
common thread running through these cases is the intrusion into the jury
deliberations – and therefore presumably into the jury’s thought processes – of
extraneous information, compromising the jury’s ability to consider only
admitted evidence, in direct violation of the court’s instructions. What makes it worse, the improperly
considered information is often conveyed so as to suggest the weight of
expertise behind it – whether the juror’s own expertise or the expertise of
someone outside the jury room. As the
court observed in Stankewitz, if the
police officer who incorrectly advised the jury on the elements of robbery had
kept his thoughts to himself during deliberations, a posttrial declaration revealing
them would probably not be admissible. (
399-400.) Communicating the thoughts to
the jury, however, was an admissible “overt act.”
Declarations revealing
the inner workings of a particular juror’s mind, when the workings have not
been communicated to other jurors, are usually – but not always – ruled
inadmissible. (See Honeycutt, supra, 20 Cal.3d at p. 158.) For example, in People v. Hall (1980) 108 Cal.App.3d 373, three jurors signed
declarations stating they thought they were convicting the defendant of a
misdemeanor rather than the felony of which he was actually convicted. (Id.
at pp. 376-377.) In Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, a juror
declared that she did not believe liability had been established or voted on,
and she voted for damages only because she thought liability had been already
decided and because she felt she had to get back to work. (Id.
at p. 910.)
title="">[7] In both cases, the
inadmissible. (But see
893, 908 [declarations stating jurors based guilty verdict on defendant’s
failure to testify would be admissible].)
This leaves a vast
middle ground of decisions about whether a declaration recounting statements
made in the jury room contains evidence of admissible overt acts or
inadmissible subjective reasoning processes.
(See, e.g., Lankster v. Alpha Beta
Co. (1993) 15 Cal.App.4th 678, 681 [declarations regarding juror interpretation
of liability admitted]; Smith v. Covell
(1980) 100 Cal.App.3d 947, 952, [declaration regarding juror’s description of
his own back injury in back injury case admitted]; English v. Lin (1994) 26 Cal.App.4th 1358, 1363, 1365 [declaration
regarding juror’s statement about relative’s salary apparently admissible,
although not misconduct]; People v. Lewis
(2001) 26 Cal.4th 334, 387, 389 [jury foreman’s statement to another juror
during penalty phase that murder defendant would have “everlasting life” regardless
of verdict inadmissible]; Ford v.
Bennacka (1990) 226 Cal.App.3d 330, 332, fn. 1, 335-336 [declarations from
jurors regarding how they apportioned fault inadmissible]; Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 819
[declarations regarding strong words and emotional descriptions considered].)
The
California Supreme Court confronted this problem in Krouse v. Graham (1977) 19 Cal.3d 59 (Krouse). The defendant
complained – and offered declarations to show – that the jury inflated the
amounts awarded to the plaintiffs to offset the fees the jury assumed the
plaintiffs’ attorneys would collect.
commented’” about the possibility that the plaintiffs’ attorneys would get
one-third of the award as a fee; the jury “‘considered’” this possibility and
increased the award accordingly. (
The court acknowledged
that the declarations could be construed to refer to subjective mental
processes, but “an extensive discussion evidencing an implied agreement” to
include attorney fees in the award would be misconduct requiring reversal. (Krouse,
supra, 19 Cal.3d at p. 81.) This
discussion would be an overt act, open to sight and hearing, and would
presumably qualify as “statements . . . of such a character as is likely to
have influenced the verdict improperly,” even though it would also encompass
the mental process by which the jury arrived at its verdict. The court determined that the declarations
submitted by the defendant were “inconclusive.”
Because the addition of attorney fees to the award was, at least
potentially, a “serious matter,” the court decided that “the declarations
should have been admitted and considered by the court in ruling upon
defendant’s motion for a new trial.” (
the court vacated the order denying the new trial and instructed the trial
court to hear the motion over again with the declarations admitted into
evidence.
The declarations
submitted by Colmenares and Gustave are similarly inconclusive. On the one hand, the declarants recount how
they personally arrived at the figure for noneconomic damages. These are subjective reasoning processes that
cannot be either corroborated or disproved.
Evidence regarding these mental processes would be inadmissible. (See People
v. Danks, supra, 32 Cal.4th at pp. 298-302 [isolating inadmissible
subjective portions of declarations].)
But the declarations also give details of the discussions among the jurors
of the basis for calculating damages.
Someone told the jury that people in Gustave’s job earn $50,000 per
year.
might not be able to work in the future and might experience “a drop off in
earnings due to her injuries.” The jury
used the life expectancy period from plaintiff’s counsel’s closing argument –
27 years – to determine the multiplier for future pain and suffering. All three declarations are in accord as to
the way the jury arrived at its figures.
Whether these would be overt acts, objectively ascertainable is open to
debate. (Cf. Drust v. Drust (1980) 113 Cal.App.3d 1, 9 [juror declarations
explaining breakdown of personal injury future expenses award
admissible].)
Under other
circumstances, we might have adopted the Krouse
solution and returned the case to the trial court to decide the motion after
admitting the portions of the declarations giving evidence of overt,
ascertainable acts. In this case,
however, we already know how this reconsideration would come out. The court stated that even if the
declarations were admissible, the motion for new trial would still be denied
because they established the purpose of the award as compensation for future pain
and suffering, not lost future earnings.
It therefore found no misconduct.
We review an order
denying a motion for new trial for abuse of discretion, reviewing the entire
record to determine independently whether grounds exist for granting the
motion. (Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th
708, 733.) Evidence of juror misconduct
creates a rebuttable presumption of prejudice (Honeycutt, supra, 20 Cal.3d at p. 156) and provides grounds for a
new trial. (Code Civ. Proc., § 657,
subd. (2).) When the motion for new
trial is based on juror misconduct, we review the record “to determine whether
there is a reasonable probability of actual harm to the complaining party
resulting from the misconduct.
[Citations.] Some of the factors
to be considered when determining whether the presumption [of prejudice] is
rebutted are the strength of the evidence that misconduct occurred, the nature
and the seriousness of the misconduct, and the probability that actual
prejudice may have ensued.” (
Cal.3d at p. 417, fn. omitted.)
In this case, the trial
court’s alternative holding assumed the admission of the jurors’ declarations
and still found no misconduct because, regardless of how the jury arrived at
the future damages figure, the declarations supported Gustave’s position that
the award was for pain and suffering, not lost earnings. A jury has a great deal of leeway in
determining pain and suffering damages.
(See, e.g., Duarte v. Zachariah
(1994) 22 Cal.App.4th 1652, 1665.) We
therefore conclude, after reviewing the entire record, that even if the jury
based its award on considerations described in the affidavits, no misconduct
occurred. Accordingly we affirm the
portion of the order denying a new trial on the basis of jury misconduct.
II. Excessive
Damages
The trial court did not
rule on the portion of Colmenares’ motion for new trial on excessive damages
for pain and suffering. It ruled only
that future medical expenses were excessive.
A new trial was forestalled by Gustave’s accepting a reduction in the
verdict equal to the amount of the future medical expenses awarded by the jury.
If a court has not ruled
on a motion for new trial within 60 days of one of the statutory triggering
events, the motion is deemed denied.
(Code Civ. Proc., § 660.) In this
case, the triggering event has long passed, and the trial court cannot rule on
the motion for new trial based on excessive pain and suffering damages. (Cf. Uzyel
v. Kadisha (2010) 188 Cal.App.4th 866, 901 [court cannot enter new order on
new trial motion after expiration of statutory period].) We therefore consider the motion denied as to
excessive pain and suffering damages.
Although we review the
denial of a motion for a new trial for abuse of discretion, we must also review
the entire record to determine independently whether grounds exist for granting
the motion. (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825,
832.) Colmenares argued that $1.3
million for future pain and suffering was excessive, but she offered nothing to
back up her argument. There were, for
example, no citations to cases with comparable fact patterns or surveys of
personal injury awards. There was no
evidence of any kind. The bare statement
that the award was too much is insufficient.
Neither the trial court nor our court is in a position to determine the
propriety of the amount of future pain and suffering damages for a permanent
injury without some help. Accordingly,
since there is nothing in the record providing grounds for a new trial on the
ground of excessive pain and suffering damages, we affirm the trial court’s
implied denial of the motion on that ground.
The order denying
the motion for new trial is affirmed.
The parties are to bear their own costs on appeal.
BEDSWORTH,
J.
WE CONCUR:
O’LEARY, P. J.
ARONSON, J.
name="_ftn1" title=""> [1] The jury also awarded damages for
future medical expenses, but Gustave agreed to a remittitur of this amount at
the hearing on the motion for new trial.
This category of damages is not at issue in this appeal.
name="_ftn2" title=""> [2] Gustave testified that she went
back to work seven or eight months after the accident.
