Filed 10/5/26 Certified for Publication 10/9/26 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
ALESHIA MARTINEZ,
F090026
Plaintiff and Respondent,
(Super. Ct. No. 22CECG00728)
v.
ANTONIO CONTRERAS,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Kristi C.
Kapetan, Judge.
Sagaser, Watkins & Wieland, Charles P. Hamamjian and Mattie R. Hodges for
Defendant and Appellant.
Peerali Law, Kristopher L. Peerali and Serena J. Peerali; Sunset West Legal
Group, Payam Kashani; Esner, Chang, Boyer & Murphy, Andrew N. Chang and Kiran
Iyer for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On March 19, 2021, defendant and appellant Antonio Contreras and plaintiff and
respondent Aleshia Martinez were involved in a motor vehicle accident. Martinez sued
Contreras for damages and the matter was tried before a jury. On October 31, 2024, the
jury returned a verdict for Martinez in the total amount of $55,000. On November 5,
2024, judgment for said amount was entered in favor of Martinez. On May 2, 2025, the
trial court granted Martinez’s motion for a new trial on the ground of jury misconduct.
Contreras appeals from that order.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 2022, Martinez filed suit against Contreras for damages Martinez
sustained in the motor vehicle accident. Trial of the matter commenced on October 21,
2024, and lasted eight days.1
I. The Verdict and Judgment
On October 31, 2024, the jury issued a joint verdict form and awarded Martinez
$20,000 for past economic loss, $0 for future economic loss, $20,000 for past
noneconomic loss, and $15,000 for future noneconomic loss, for a total award of $55,000
in favor of Martinez.
On November 5, 2024, the trial court entered judgment in favor of Martinez for
$55,000 in conformity with the jury’s verdict, “along with interest at the rate of ten
percent (10%) per annum from the date of the entry of the judgment together with costs
and disbursements.”
On March 7, 2025, notice of entry of the judgment was served and filed.
1 In her opening brief and her motion for a new trial, Martinez states that Contreras
“stipulated to negligence before trial, and the trial court granted [Martinez’s] motion for a
directed verdict on the issue of causation.” Contreras has not disputed this statement.
2.
II. The New Trial Motion
On March 10, 2025, Martinez filed a notice of her intent to bring a motion for a
new trial or, in the alternative, additur.2 The same day, Martinez filed her motion for a
new trial on grounds of jury misconduct, inadequate damages and insufficiency of the
evidence (new trial motion). (Code Civ. Proc., § 657, subds. 2, 5 & 6.)3 Contreras
opposed the new trial motion.
The trial court went on to grant the motion solely on grounds of jury misconduct,
which is the only claim at issue on appeal.4 Martinez’s claim of jury misconduct was
based on the declarations of two jurors, which are discussed below.
A. Juror No. 10
Juror No. 10 signed a declaration in which he stated that during jury deliberations
“some jurors openly and overtly discussed [Contreras’s] wealth and socioeconomic
status, and some jurors verbally expressed sympathy for [Contreras]”; juror No. 10 and
other jurors “openly and overtly verbally expressed concerns about how [Contreras] was
going to be able to afford a large judgment”; “many jurors openly and over[t]ly verbally
expressed that service and military members lost limbs and got injured in their line of
work, and would not receive much, if any, compensation for said injuries”; and
“[b]ecause of the above statement, many jurors openly and overtly verbally expressed
2 “The practice of additur [is the] denial of the plaintiff’s motion for a new trial on
condition that the defendant consent to an increase of an inadequate award ….”
(8 Witkin, Cal. Procedure (6th ed. Mar. 2026 update) Attack on Judgment in Trial Court,
§ 123.) The trial court did not grant Martinez’s alternative request for additur.
3 All further statutory references are to the Code of Civil Procedure unless otherwise
stated.
4 Section 657 provides that an order granting a new trial “shall not be affirmed upon
the ground of the insufficiency of the evidence to justify the verdict or other decision, or
upon the ground of excessive or inadequate damages, unless such ground is stated in the
order granting the motion ….” Here, the trial court granted the new trial motion solely on
the ground of jury misconduct and did not address the remaining grounds for the motion.
3.
reluctance to award … Martinez with a large verdict, even given the evidence in the
case.” Juror No. 10 stated the aforementioned “statements were all heavily discussed
when coming to a final verdict amount in each category of damage items on the verdict
form.”
B. Juror No. 6
Juror No. 6 signed a declaration in which he stated that during jury deliberations,
he and other jurors “openly and overtly expressed concerns about why … Martinez was
suing … Contreras rather than an insurance company”; “openly and overtly expressed
concerns about how … Contreras was going to be able to afford a large judgment”; that
“the following question was openly and overtly discussed: ‘If this case was against Wal-
Mart, would it affect the outcome?’ ” and that juror No. 6 and other jurors “openly and
overtly responded … that the outcome would in fact be different against a corporation
such as Wal-Mart rather than an individual defendant such as … Contreras”; and that he
(juror No. 6) “personally wondered why … Martinez did not use her insurance for the
injuries.”
III. The Order Granting Martinez’s New Trial Motion
On May 2, 2025, the trial court issued its order granting Martinez’s new trial
motion (the “new trial order”) solely on the ground of jury misconduct (§ 657, subd. 2).
In it, the court stated it would not address the remaining grounds for the motion.
In its order, the trial court set out the correct three-step process for considering the
new trial motion, citing Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270
(Hernandez), in which that court wrote: “A trial court undertakes a three-step process to
evaluate a motion for new trial based on juror misconduct. [Citation.] The trial court
must first determine whether the declarations supporting the motion are admissible under
Evidence Code section 1150.[5] Second, if all or part of the declarations are admissible,
5 Evidence Code section 1150 provides, in relevant part: “Upon an inquiry as to the
validity of a verdict, any otherwise admissible evidence may be received as to statements
4.
the trial court determines whether the facts establish misconduct. If the trial court finds
misconduct occurred the trial court then determines whether the misconduct was
prejudicial.” (Id. at p. 278.)
The trial court determined that the two juror affidavits submitted in support of the
new trial motion were admissible under Evidence Code section 1150, writing: “these
declarations clearly contain statements of what the jurors observed and perceived
themselves and is not evidence of their ‘mental processes.’ ” The court observed that no
counter affidavits were presented by Contreras in opposition to the new trial motion.
Next, the trial court found that the affidavits “establish that the jury disregarded
several instructions and considered improper factors in assessing the value of
[Martinez’s] case” by considering “how [Contreras] could possibly pay a large verdict”
and “why the action wasn’t against an insurance company,” and by “verbally
express[ing] sympathy for [Contreras].” The court concluded these statements violated
the following instructions given to the jury: Judicial Council of California Civil Jury
Instruction (CACI) Nos. 105, 117, 10006 and 5000. The court determined each of the
aforementioned considerations by the jury were outside the evidence received at trial.
Finally, the trial court found the jury misconduct was likely prejudicial, remarking
that the affidavit of juror No. 10 stated that “ ‘many jurors openly and overtly verbally
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.” (Id., subd. (a).)
6 The trial court’s reference to CACI No. 1000 is likely a typographical error. Said
instruction pertains to claims of premises liability (CACI No. 1000 [“Premises
Liability—Essential Factual Elements]), which is not an issue in the case. CACI
No. 1000 was not provided to the jury. We presume the court intended to refer to CACI
No. 100, which restates many of the same instructions found in CACI No. 5000. Because
CACI No. 100 is redundant of CACI No. 5000, we omit further reference to CACI
No. 100 and CACI No. 1000.
5.
expressed reluctance to award … Martinez with a large verdict’ because they compared
her injuries to those of military members,” and “the considerations were all heavily
discussed when coming to a final verdict in each category of damages.” The court also
remarked that juror No. 6 stated that other jurors said the verdict would be different if the
lawsuit were against a corporation such as Walmart instead of an individual. The court
found the misconduct was likely prejudicial and the “verdict was tainted by the improper
discussions that are expressly forbidden by the CACI instructions.”
As mentioned, on May 2, 2025, the trial court granted Martinez’s new trial
motion.
IV. Timely Appeal
On May 2, 2025, the same day the court issued its new trial order granting the new
trial motion, the Clerk of Court mailed a file-endorsed copy of the order to all parties’
counsel of record. On June 25, 2025, Contreras timely appealed the new trial order.
DISCUSSION
I. Section 657
Section 657 authorizes a trial court to grant a new trial on seven grounds
including, without limitation: “Misconduct of the jury”; “Excessive or inadequate
damages”; and “Insufficiency of the evidence to justify the verdict.” “When a new trial is
granted, on all or part of the issues, the court shall specify the ground or grounds upon
which it is granted and the court’s reason or reasons for granting the new trial upon each
ground stated. [¶] … [¶] … If an order granting such motion does not contain such
specification of reasons, the court must, within 10 days after filing such order, prepare,
sign and file such specification of reasons in writing with the clerk. The court shall not
direct the attorney for a party to prepare either or both said order and said specification of
reasons.” (§ 657.)
6.
II. Contreras’s Contentions on Appeal
Contreras attacks the new trial order on the following grounds: (1) that the trial
court’s specification of reasons for granting the new trial motion is inadequate under
section 657 because the trial court did not provide sufficient reasoning for its decision to
admit the juror declarations into evidence, its finding of jury misconduct, and finding of
prejudice; (2) that the court erred by admitting the juror declarations into evidence
because they contain inadmissible hearsay, lack corroboration, and constitute evidence of
juror mental processes; and (3) there is insufficient evidence to establish misconduct and
prejudice.
III. Standard of Review
In Oakland Raiders v. National Football League (2007) 41 Cal.4th 624 (Oakland
Raiders), the Supreme Court of California addressed the appropriate standard of review
for an order granting a new trial on the ground of jury misconduct. (Id. at pp. 635–636.)
The court determined that “[w]hen the trial court provides a statement of reasons as
required by section 657, the appropriate standard of judicial review is one that defers to
the trial court’s resolution of conflicts in the evidence and inquires only whether the
court’s decision was an abuse of discretion.” (Id. at p. 636.) Under such circumstances,
the party challenging a new trial order “bear[s] the burden of persuading the appellate
court that the order should be overturned.” (Id. at pp. 640–641.)
Conversely, when the trial court fails to provide a statement of reasons to support
a new trial order in compliance with section 657, the matter calls for an independent
appellate review of the order (Oakland Raiders, supra, 41 Cal.4th at p. 640) and the
burden of persuasion is reversed—i.e., “ ‘the burden is on the movant to advance any
grounds stated in the motion upon which the order should be affirmed, and a record and
argument to support it’ [citation] and to persuade the reviewing court that the trial court
should have granted the motion for a new trial.” (Id. at p. 641.)
7.
For reasons stated in the following section of this opinion, we conclude the trial
court’s statement of reasons is sufficient for purposes of section 657. Accordingly, we
review the matter for abuse of discretion. (Oakland Raiders, supra, 41 Cal.4th at
pp. 636, 640–641.) “The abuse of discretion standard is not a unified standard; the
deference it calls for varies according to the aspect of a trial court’s ruling under review.
The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of
law are reviewed de novo, and its application of the law to the facts is reversible only if
arbitrary and capricious.” (TRC Operating Co., Inc. v. Chevron USA, Inc. (2024)
102 Cal.App.5th 1040, 1064, review granted Sept. 25, 2024, S286233; Gaines v. Fidelity
National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100 [same].)
IV. Adequacy of the Statement of Reasons
There are two purposes “underlying section 657’s statement of reasons
requirement.” (Oakland Raiders, supra, 41 Cal.4th at p. 636.) “One [purpose] is ‘to
promote judicial deliberation before judicial action.’ [Citation.] The statute serves that
purpose by requiring a statement of reasons drafted by the court, not by the prevailing
party. [Citation.] The other purpose is ‘to make the right to appeal from the order more
meaningful.” (Ibid.; Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 363 (Scala)
[same].)
In considering whether a statement of reasons is adequate, it is helpful to
distinguish between two concepts discussed in section 657—i.e., the “ground” or
“grounds” upon which a trial court is authorized to grant a new trial motion, and the
“reason” or “reasons” for granting the motion. In this regard, the California Supreme
Court stated, “ ‘it is apparent that in the context of [section 657] the words “ground” and
“reason” have different meanings.’ [Citation.] The word ‘ground’ refers to any of the
seven grounds listed in section 657. [Citation.] A statement of grounds that reasonably
approximates the statutory language is sufficient. [Citations.] The statement of
‘reasons,’ on the other hand, should be specific enough to facilitate appellate review and
8.
avoid any need for the appellate court to rely on inference or speculation.” (Oakland
Raiders, supra, 41 Cal.4th at p. 634.)
“The statement of reasons must refer to evidence, not ultimate facts.” (Oakland
Raiders, supra, 41 Cal.4th at p. 635.) “The specification [of reasons] ‘must briefly
identify the portion of the record which convinces the judge “that the court or jury clearly
should have reached a different verdict or decision.” ’ ” (Smith v. Moffat (1977)
73 Cal.App.3d 86, 92.)
The Scala decision provides additional guidance. Scala involved a judgment
rendered in favor of the plaintiff for personal injury damages sustained while working at
a construction site. (Scala, supra, 3 Cal.3d at p. 362.) After the verdict was rendered and
judgment entered, the defendant moved for a new trial. (Id. at p. 363.) The trial court
granted the motion “on the sole ground of insufficiency of the evidence” and the only
reasons given by the court for granting the motion on that ground was that “ ‘there is no
sufficient evidence to show that the defendant was negligent and the evidence does show
that the plaintiff failed to use ordinary care for his own safety and that that failure was a
proximate cause of his injuries.’ ” (Ibid.)
Referring to the two purposes of section 657’s requirement of a specification of
reasons, the court wrote: “Of these two purposes, the need ‘to make the right to appeal
from the order more meaningful’ [citation] is perhaps the more useful yardstick to an
appellate court for measuring the adequacy of the specification.” (Scala, supra, 3 Cal.3d
at p. 366.) “[A] specification which merely recites that under the court’s view of the
evidence ‘the defendant was not negligent’ or ‘the plaintiff was negligent’ is of little if
any assistance … to the reviewing court…. Such a ‘reason’ simply reiterates the ground
of the ruling itself.” (Id. at pp. 366–367.)
The Scala court stated it was not necessary for a trial judge to “ ‘cite page and line
of the record, or discuss the testimony of particular witnesses,’ nor need he undertake ‘a
discussion of the weight to be given, and the inferences to be drawn from each item of
9.
evidence supporting, or impeaching, the judgment.’ [Citation.] On the other hand, he
must do more than in effect reiterate the ground of his ruling.” (Scala, supra, 3 Cal.3d at
p. 370.) “ ‘No hard and fast rule can be laid down as to the content of such a
specification, and it will necessarily vary according to the facts and circumstances of each
case.’ ” (Ibid.)
Here, in its new trial order, the trial court stated, “the declarations establish that
the jurors considered how [Contreras] could possibly pay a large verdict, why the action
wasn’t against an insurance company, and verbally expressed sympathy for [Contreras].”
The court determined that these statements violated specific instructions given to the jury,
i.e., CACI Nos. 105, 117, and 5000, and that “these considerations were not part of the
evidence received in the trial and should not have been considered or discussed among
the panel.”
The trial court further determined that the jury misconduct was likely prejudicial.
The court, referring to the declaration of juror No. 10, wrote: “Juror [No. 10] stated that
‘many jurors openly and over[t]ly verbally expressed reluctance to award … Martinez
with a large verdict’ because they compared her injuries to those of military members.
[Juror No. 10] further stated that the considerations were all heavily discussed when
coming to a final verdict in each category of damages.” The court stated, “[t]his indicates
that the jurors’ improper considerations of insurance, ability to pay and sympathy
impacted the amount of damages ultimately awarded to [Martinez].” In addition, the trial
court, referring to the declaration of juror No. 6, wrote: “Juror [No. 6] indicates that the
jurors openly stated the verdict would be different if it were a lawsuit against a
corporation such as Walmart instead of an individual.” The court found that the above
“statements confirm that the verdict was tainted by the improper discussions that are
expressly forbidden by the CACI instructions.”
The statement of reasons includes references to the specific evidence relied upon
by the trial court in arriving at its decision to grant a new trial and the specific CACI
10.
instructions the court determined were violated by the discussions jurors had during
deliberation. In our view, the statement of reasons satisfies the two-fold purpose of
section 657—it demonstrates the trial court engaged in a “careful deliberation … before
ruling” on the new trial motion, and it is “sufficiently precise to permit meaningful
appellate review.” (Scala, supra, 3 Cal.3d at p. 363.)
Contreras argues the trial court “impliedly accept[ed] [Martinez’s] arguments that
the declarations establish that jurors considered how [Contreras] could pay a large
verdict, why the case was not against an insurance company, and they were sympathetic
to [Contreras].” Contreras argues this is tantamount to having Martinez’s counsel draft
the court’s statement of reasons in violation of section 657.
The record on appeal does not support the contention that the court directed
Martinez’s counsel to prepare the new trial order in this matter. That the court found
Martinez’s arguments persuasive and ruled in her favor based on those same arguments is
not a basis for challenging the statement of reasons. If it were, few if any orders granting
a new trial would survive scrutiny. (See Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th
405, 415 [“Section 657 … does not prohibit a court from adopting material in a party’s
brief. Indeed, if a court could not rely on the reasons advanced in the briefs, their utility
would be undermined and they would service little purpose.”].)
As a final attack on the trial court’s statement of reasons in support of the new trial
order, Contreras contends the statement of reasons did not adequately provide reasons for
admitting the juror declarations.
Section 657’s requirement of a statement of reasons reads: “When a new trial is
granted … the court shall specify the ground or grounds upon which it is granted and the
court’s reason or reasons for granting the new trial upon each ground stated.” (§ 657.)
Thus, the statement of reasons is intended to illuminate why the evidence supports the
ground upon which a new trial was ordered—not why the evidence relied on by the trial
court was deemed admissible. In fact, section 657 does not discuss the admissibility of
11.
evidence. Although the first step in evaluating a new trial motion is to determine the
admissibility of the evidence offered in support of the motion (Hernandez, supra,
37 Cal.App.5th at p. 278), nothing in the text of section 657 nor in the case citations
provided by Contreras supports the view that the statement of reasons must also set forth
the trial court’s reasons for determining the admissibility of the evidence it relied upon.7
We conclude the trial court’s statement of reasons complies with section 657.
Consequently, there is no basis for this court to conduct an independent review of the
new trial order and, instead, we review the matter for abuse of discretion. (Oakland
Raiders, supra, 41 Cal.4th at p. 636.) As a result, the burden of persuading this court that
there has been an abuse of discretion remains with Contreras. (Id. at pp. 640–641.)
We review Contreras’s substantive argument regarding the admissibility of the
juror declarations in the next section of this opinion.
V. Evidence of Jury Misconduct
As previously stated, in evaluating a motion for a new trial, the “trial court must
first ‘determine whether the affidavits supporting the motion are admissible.’ ” (Barboni
v. Tuomi (2012) 210 Cal.App.4th 340, 345 (Barboni).) That determination is made in
accordance with Evidence Code section 1150, and is subject to limitations contained
therein. (Barboni, at p. 345; People v. Flores (2021) 70 Cal.App.5th 100, 108 (Flores).)
That determination, “like any issue of admissibility, we review for abuse of discretion.”
(Barboni, at p. 345; Flores, at p. 108.)
7 We do not mean to suggest that a trial court should not discuss its reasons for
deeming evidence admissible in an order granting a new trial. Undoubtedly, appellate
courts may be aided by such a discussion. However, section 657 does not require it in
order to validate a statement of reasons. As is discussed in section V. of the
DISCUSSION, post, the trial court did provide its reasons for determining the juror
declarations admissible.
12.
Here, the trial court determined that the juror declarations in support of Martinez’s
new trial motion were admissible under Evidence Code section 1150, which provides, in
relevant part:
“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.” (Id., subd. (a).)
“ ‘ “This statute 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 ….’ ” ’ ” (People v. Johnson (2013)
222 Cal.App.4th 486, 494 (Johnson); Flores, supra, 70 Cal.App.5th at p. 108 [same].)
“ ‘ “ ‘This limitation prevents one juror from upsetting a verdict of the whole jury by
impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent.
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.’ ” ’ ” (Johnson, at p. 494.)
“ ‘Evidence Code section 1150, while rendering evidence of the jurors’ mental
processes inadmissible, expressly permits, in the context of an inquiry into the validity of
a verdict, the introduction of evidence of “statements made … within … the jury room.”
We have warned, however, that such evidence “must be admitted with caution,” because
“[s]tatements have a greater tendency than nonverbal acts to implicate the reasoning
processes of jurors.” [Citation.] But statements made by jurors during deliberations are
admissible under Evidence Code section 1150 when “the very making of the statement
sought to be admitted would itself constitute misconduct.” ’ ” (Johnson, supra,
222 Cal.App.4th at pp. 494–495, italics added; Flores, supra, 70 Cal.App.5th at p. 108.)
13.
“When juror declarations contain both admissible statements (i.e., regarding overt
conduct open to sight, hearing, and other senses) and inadmissible statements (i.e.,
regarding jurors’ subjective reasoning processes), only the admissible portions may be
considered.” (Cal. Judges Benchbook: Civil Proceedings-After Trial (CJER Dec. 2025
Update) Motions Attacking Verdict or Judgment After Trial, § 2.27; Lankster v. Alpha
Beta Co. (1993) 15 Cal.App.4th 678, 681, fn. 1. (Lankster).) Where no counter-affidavits
are offered, “the facts presented by the admissible portions of [juror declarations] are
deemed established.” (Lankster, at p. 681, fn. 1; Moore v. Preventive Medicine Medical
Group, Inc. (1986) 178 Cal.App.3d 728, 740, fn. 8 (Moore).)
Here, the court determined that content of the juror declarations met the
requirements of being “open to sight, hearing, and the other senses and thus subject to
corroboration” and were admissible. The trial court determined the “jurors discuss[ed]
their observations about what was discussed during deliberations” and the “declarations
clearly contain statements of what the jurors observed and perceived themselves and is
not evidence of their ‘mental processes.’ ” The court observed that no counter affidavits
were presented in opposition to the new trial motion.
A. Hearsay Challenge
Contreras correctly states that, in addition to the specific admissibility limitations
contained in Evidence Code section 1150, the statements must be “otherwise admissible.”
(Evid. Code, § 1150, subd. (a).) Contreras argues, among other things, that the juror
declarations contain inadmissible hearsay. “ ‘Hearsay evidence’ is evidence of a
statement that was made other than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) “Except
as provided by law, hearsay evidence is inadmissible.” (Id., subd. (b).)
In response, Martinez argues that Contreras waived his hearsay argument by
failing to raise the issue with the trial court. We have reviewed Contreras’s opposition to
the new trial motion and have confirmed that Martinez is correct—Contreras never raised
14.
a hearsay objection to any of the juror declarations in his opposition to the new trial
motion.
“It is the general rule, of course, that questions relating to the admissibility of
evidence will not be reviewed on appeal absent a specific and timely objection at trial on
the ground sought to be urged on appeal.” (People v. Williams (1976) 16 Cal.3d 663,
667, fn. 4; Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 556, fn. 15 [failure to
make hearsay objection to juror declaration in support of a motion for a new trial forfeits
the contention on appeal].) “The rule requiring objections on the trial level is based on
sound policies: promoting efficiency, economy and the nonduplication of functions in the
courts.” (People v. Lyons (1970) 9 Cal.App.3d 58, 62.)
To avoid forfeiture, Contreras contends “the admissibility of the declarations was
expressly argued by” him. However, Contreras fails to provide any supporting citation to
the record, and does not specifically argue that he lodged a hearsay objection to the juror
declarations. Nothing in our review of the record on appeal demonstrates the hearsay
objection was preserved on appeal.
Contreras also cites to People v. McCullough (2013) 56 Cal.4th 589, 593 for two
propositions: that “neither forfeiture nor application of the forfeiture rule is automatic”
and that “[c]ompeting concerns may cause an appellate court to conclude that an
objection has not been forfeited.” However, Contreras offers no further discussion of
People v. McCullough and no argument or discussion of any competing concerns that
warrant consideration of the forfeited objections. “ ‘In order to demonstrate error, an
appellant must supply the reviewing court with some cogent argument supported by legal
analysis and citation to the record.’ ” (United Grand Corp. v. Malibu Hillbillies, LLC
(2019) 36 Cal.App.5th 142, 146.) An appellate court is “not required to examine
undeveloped claims or to supply arguments for the litigants.” (Shaw v. Los Angeles
Unified School Dist. (2023) 95 Cal.App.5th 740, 754.)
15.
We conclude the hearsay objection to the juror declarations has been forfeited by
Contreras and we have not been presented with any grounds upon which to relieve him of
that forfeiture.8
B. Corroboration and Authentication Challenges
Contreras also argues the trial court “accepted the contents of the declarations as
true without corroborating or authenticating the information contained therein.”
Contreras relies on Johnson, wherein it was stated that “ ‘ “ ‘[t]he only improper
influences that may be proved under [Evidence Code] section 1150 to impeach a verdict
… are those open to sight, hearing and the other senses and thus subject to
corroboration.’ ” ’ ” (Johnson, supra, 222 Cal.App.4th at p. 494.)
Martinez contends Contreras has also forfeited these contentions as a result of his
failure to raise the issue before the trial court in opposing her new trial motion. We have
reviewed the record on appeal and conclude Martinez is correct. Contreras did not raise
these arguments before the trial court.
In reply, Contreras states his argument “is the same raised before the Superior
Court” when he argued that the “declarations attribute the alleged statements to all jurors
‘but fails to specify any particular juror.’ ” We do not equate that argument with the
contention that juror declarations must be corroborated or authenticated.
Contreras also contends that “throughout Appellant’s [i.e., Contreras’s] brief,
Appellant [i.e., Contreras] points out that there is no corroboration of fact between the
declarations and the declarations do not contain any foundation or context such as what
was specifically discussed, who was part [of] any discussions or made any statements,
when the discussions allegedly took place, … what comments were made in response
8 Notably, even if we were to relieve Contreras of the forfeiture of his hearsay
argument, Contreras does not explain or discuss how the statements contained in the juror
declarations meet the second prong of the hearsay statute, i.e., that statements were
“offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).)
16.
….” We presume Contreras is referring to arguments made in his opening brief on
appeal because he does not support his contention with any citation to the record and we
have not found any support for the contention in the record on appeal. The fact that
Contreras is making the argument on appeal does not relieve him of forfeiture based on
his failure to present these arguments to the trial court. We conclude the arguments have
been forfeited. (See People v. Williams, supra, 16 Cal.3d at p. 667, fn. 4.)
In addition, Contreras has not cited to any authority that demonstrates that
corroboration of the evidence is required. The statement that Contreras relies upon, i.e.,
that “ ‘ “ ‘[t]he 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’ ” ’ ” (Johnson, supra, 222 Cal.App.4th at
p. 494), does not state or imply that corroboration is required. The statement merely
acknowledges evidence that is “open to sight, hearing, and the other senses” is, as a
result, subject to corroboration.
Here, the trial court was not required to seek corroboration. Contreras was not
precluded from providing evidence, if such evidence existed, to rebut the declarations of
juror No. 10 and juror No. 6, or to provide necessary context. Where no counter-
affidavits are offered, as is the case here, “the facts presented by the admissible portions
of [juror declarations] are deemed established.” (Lankster, supra, 15 Cal.App.4th at
p. 681, fn. 1; Moore, supra, 178 Cal.App.3d at p. 740, fn. 8.)
C. Juror Mental Processes
Contreras contends the juror declarations contained information concerning the
jurors’ mental processes and that the trial court’s consideration of such evidence violated
Evidence Code section 1150. Martinez contends the declarations consisted of statements
that were openly and overtly discussed and, even where they may inform of juror mental
processes, the very making of the statements constituted misconduct and rendered the
declarations admissible. We conclude Martinez has the better argument.
17.
1. Relevant Case Law
“Juror affidavits may be used to impeach a verdict if they refer to objectively
ascertainable statements, conduct, conditions or events, but not subjective reasoning
processes of jurors, which are likely to have influenced the verdict improperly.”
(Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905, 910.) “ ‘ “[W]hen a juror in
the course of deliberations gives the reasons for his or her vote, the words are simply a
verbal reflection of the juror’s mental processes. Consideration of such a statement as
evidence of those processes is barred by Evidence Code section 1150.” ’ ” (Guernsey v.
City of Salinas (2018) 30 Cal.App.5th 269, 283 (Guernsey).)
“In interpreting Evidence Code section 1150, the California Supreme Court in
People v. Hutchinson (1969) 71 Cal.2d 342, 349–350 … held that the conduct, conditions
or events which are alleged to have influenced the jury improperly must consist of overt
acts which are objectively ascertainable, i.e., influences which are open to sight, hearing
and other senses and thus subject to corroboration. The court made it clear, however, that
a verdict may not be impeached by affidavits whose effect is to prove the subjective
reasoning processes of a juror which can be neither corroborated nor disproved.
[Citations.] ‘This limitation prevents one juror from upsetting a verdict of the whole jury
by impugning his own or his fellow jurors’ mental processes or reasons for assent or
dissent.’ ” (People v. Elkins (1981) 123 Cal.App.3d 632, 637 (Elkins).) The rule
“excludes unreliable proof of thought processes and thereby preserves the stability of
verdicts. It deters the harassment of jurors by the losing side seeking to discover defects
in the deliberative process and reduces the risk of postverdict jury tampering. It also
assures the privacy of jury deliberations.” (People v. Steele (2002) 27 Cal.4th 1230,
1261–1262.) As stated, however, “ ‘Evidence Code section 1150, subdivision (a) does
not prohibit admitting a statement that reflects a juror’s reasoning processes if the
statement itself amounts to juror misconduct.” (Guernsey, supra, 30 Cal.App.5th at
18.
p. 284.) The following discussion provides some examples of statements that violate the
rule and statements that do not.
In Johnson, the court found the statement “that it ‘was hard for us to vote guilty’
because of the possibility that [the] defendant ‘was covering for someone else’ was
inadmissible evidence of the jurors’ mental processes. Statements about what the jurors
were ‘thinking,’ what they ‘wrestled with,’ and what they ‘had a hard time with’ were
likewise inadmissible.” (Johnson, supra, 222 Cal.App.4th at p. 495.) On the other hand,
the court found the following statements were relevant and admissible: “that ‘at least half
of the jurors … raised the question if he is innocent why he didn’t take the stand to
defend himself.” (Ibid.) The court concluded the making of this statement violated the
jury instruction that “ ‘[a] defendant has an absolute constitutional right not to testify….
Do not consider, for any reason at all, the fact that the defendant did not testify.’ ” (Ibid.)
In People v. Sutter (1982) 134 Cal.App.3d 806, the court stated that “evidence of
what the juror ‘felt’ or how he understood the trial court’s instructions is not competent.”
(Id. at p. 819.) Evidence that a “juror was considering and discussing with the other
jurors ‘evidence’ other than that which was received at trial” constitutes misconduct. (Id.
at p. 820.) “Such ‘evidence’ cannot be a part of the jury’s deliberations.” (Ibid.)
Guernsey involved a traffic accident that occurred when a pedestrian was struck
by a vehicle within a shopping center driveway crosswalk. (Guernsey, supra,
30 Cal.App.5th at p. 271.) An issue in the case was whether the driveway crosswalk, on
property owned by the City, presented a dangerous condition. (Id. at p. 272.) A verdict
was rendered against the defendant driver but in favor of the City, and judgment was
entered accordingly. (Ibid.; id. at p. 277.) The plaintiff brought a motion for a new trial
against the City, which the trial court denied. (Id. at p. 277.)
The Guernsey court wrote: “The ‘mental processes’ prohibition applies to juror
affidavits conveying jurors’ statements about their understanding of certain words in
instructions[,]” “precludes the admission of a statement in a juror affidavit that the
19.
polling of the jurors was inconsistent with their actual votes [citation] and of statements
describing the amount of time that the jury spent discussing an issue.” (Guernsey, supra,
30 Cal.App.5th at p. 283.) The court went on to determine that the following statements
violated Evidence Code section 1150’s prohibition against evidence that revealed the
jurors’ mental processes: that the jurors’ vote tally on whether the driveway constituted a
dangerous condition was nine to three; that “a juror changed his vote because he ‘felt
outvoted’ ”; that “the jury discussed and ‘agreed’ that the [jury] instruction did not allow
them to find a dangerous condition”; and that “some jurors ‘stated’ that the City was
partially responsible.” (Id. at pp. 283, 284.)
Contreras argues that a number of statements in the juror declarations contain
mental process information, namely, those that stated “jurors verbally expressed
sympathy for [Contreras]”; that they “verbally expressed reluctance to award … Martinez
with a large verdict”; and that they considered “how the [judgment] would differ” if it
involved military service members or a corporation like Wal-Mart.
Contreras likens the above statements to those made in Moore, wherein the
plaintiff averred in a declaration that “a juror informed the other jurors that because of his
previous knowledge of other malpractice suits, the $500,000 awarded [to the plaintiff] for
pain and suffering was cheap.” (Moore, supra, 178 Cal.App.3d at p. 741.) The Moore
court concluded no reversible misconduct was shown because the jury had awarded her
$500,000 notwithstanding. (Ibid.) The movant then argued jurors might have been
initially concerned the award was too high, and the statement may have reassured the
jurors that it was not too high. (Ibid.) The court found this to be speculative and that it
“essentially asks [the court] to examine jurors’ subjective reasoning processes,” which is
prohibited under Evidence Code section 1150. (Moore, at p. 741.)
Contreras also likens the “discussions of [Contreras’s] wealth, expressions of
sympathy, conversations regarding service members, and expressions of reluctance to
award [Martinez] a large verdict” and “how the case would be different against Wal-
20.
Mart” to those made in Elkins, wherein the lower court refused to consider juror
declarations that disclosed one of the jurors had repeatedly misstated the law that was
given by the trial court. (Elkins, supra, 123 Cal.App.3d at pp. 636–638.) In considering
the juror’s misstatement of the law, the Elkins court wrote, “[t]he subjective quality of
one juror’s reasoning is not purged by the fact that another juror heard and remembers the
verbalization of that reasoning. To hold otherwise would destroy the rule of Hutchinson
which clearly prohibits the upsetting of a jury verdict by assailing these subjective mental
processes. It would also inhibit and restrict the free exchange of ideas during the jury’s
deliberations.” (Id. at p. 638.)
2. Analysis
The jury instructions that the trial court determined were violated by the jury
(based on the declarations of juror No. 6 and juror No. 10) were CACI Nos. 105, 117, and
5000. Those instructions advised the jury, in relevant part, as follows:
“You must not consider whether any of the parties in this case has insurance. The
presence [or] absence of insurance is totally irrelevant. You must decide this case based
only on the law and the evidence.” (CACI No. 105.) “In reaching a verdict, you may not
consider the wealth or poverty of any party. The parties’ wealth or poverty is not
relevant to any of the issues that you must decide.” (CACI No. 117.)
CACI No. 5000 is a lengthy instruction, and provides, in relevant part: “… You
must follow these instructions [as well as those that I previously gave you.] … [¶] …
You must decide the facts based on the evidence admitted in this trial. [¶] … [¶] …
You must not let bias, sympathy, prejudice, or public opinion influence your decision….”
(CACI No. 5000.)
Each of the juror declarations at issue consists of a single page of averments. Only
a select few averments in each declaration are relevant to the issues on appeal.
Juror No. 10 states that all of the statements contained in his declaration were
“heavily discussed when coming to a final verdict amount in each category of damage
21.
items.” This statement demonstrates that the following discussions were extended and
occurred during a critical point during the jury deliberation process.
According to juror No. 10, “jurors openly and overtly discussed [Contreras’s]
wealth and socioeconomic status” and “expressed concerns about how … Contreras was
going to be able to afford a large judgment.” Juror No. 6 repeated this latter charge in his
own declaration.9
We agree with the trial court that the above discussions were “ ‘ “ ‘open to sight,
hearing, and the other senses and thus subject to corroboration.’ ” ’ ” (Johnson, supra,
222 Cal.App.4th at p. 494.) The fact that Contreras’s “wealth and socioeconomic status”
were “heavily discussed” when the jury was deciding the damages issue shows that the
discussions were not limited to the casual or passing statements of a single juror but were
actively discussed by jurors during deliberations. That these statements may reflect juror
mental processes does not make them inadmissible because the very act of discussing
these matters “heavily” as the jury was deciding the amount of a damages award against
Contreras and in favor of Martinez violates CACI No. 117’s prohibition against
considering the wealth or poverty of a party in rendering a verdict. (See Johnson, supra,
222 Cal.App.4th at pp. 494–495 [“ ‘statements made by jurors during deliberations are
admissible under Evidence Code section 1150 when “the very making of the statement
9 Juror No. 6 also averred that the jurors “openly and overtly” discussed whether the
result would be different if the case were against a large corporation such as Wal-Mart
and that many responded the outcome would in fact be different. We do not believe jury
misconduct can be premised on jurors performing a “self-check” on their own award to
ensure that they are not being influenced by improper considerations and we would not
want to suggest that doing so is improper. The statement that followed in juror No. 6’s
declaration—i.e., that the jurors decided the award would be different—arguably reflects
juror mental processes and we are unable to say that the mere making of the statement,
which appears to have occurred after the jurors had decided the amount of the award,
constitutes juror misconduct. Accordingly, we will not consider this evidence in
determining whether to affirm or reverse the new trial order.
22.
sought to be admitted would itself constitute misconduct” ’ ”]; Flores, supra,
70 Cal.App.5th at p. 108 [same].)
Juror No. 6 stated that the jury “openly and overtly expressed concerns about why
… Martinez was suing … Contreras rather than an insurance company.” This ties to the
jury’s consideration of Contreras’s wealth and socioeconomic status and to their “heavily
discussed” concerns over whether Contreras would be able to afford a large judgment
against him. This statement, like all of the verbal statements and discussions referenced
in the juror declarations, was “ ‘ “ ‘open to sight, hearing, and the other senses and thus
subject to corroboration.’ ” ’ ” (Johnson, supra, 222 Cal.App.4th at p. 494.) The jury’s
consideration of whether insurance would or would not be available to satisfy a judgment
against Contreras violated CACI No. 105’s admonition against considering whether a
party has insurance.
Juror No. 10 further declared that jurors openly discussed “that service and
military members lost limbs and got injured …, and would not receive much, if any,
compensation for said injuries.” Although we do not have the benefit of a reporters’
transcript, it is fair to presume such information was outside the evidence presented at
trial since it has no conceivable relevance to the litigation. Again, juror No. 10’s
declaration states that this was “heavily discussed” during deliberations as the jury was
considering the amount of damages to award Martinez.
The jury’s consideration of how much injured service and military members
received as compensation as it was deliberating the amount to award Martinez was a
violation of CACI No. 5000’s admonition to “decide the facts based on the evidence
admitted in this trial.”
Juror No. 10 also stated that “some jurors verbally expressed sympathy” for
Contreras as the jury was considering the amount of a damages award in favor of
Martinez. Again, we note that, according to juror No. 10, this was among the statements
that were “heavily discussed” during the deliberative process. That sympathy for
23.
Contreras was “heavily discussed” by the jury in deciding the amounts to award Martinez
demonstrates that the jury violated CACI No. 5000’s admonition that it not allow
sympathy to influence its decision.
Contreras argues that Martinez “failed to poll the jury to establish how many
jurors expressed sympathy” for Contreras. To the extent Contreras is suggesting that
Martinez needed to poll the jury on that issue before being discharged, he provides no
legal support for the contention and, because he opted to proceed without the benefit of a
reporter’s transcript, his contention cannot be verified by the record on appeal. We do
not find this argument persuasive.
Finally, Contreras’s argument that the declarations “fail to identify who spoke,
who listened, when, where, and at what point in the deliberations the conversations took
place and in what context these discussions were allegedly had” does not persuade us.
Contreras provides no case law support that suggests this level of detail is required in a
supporting affidavit. Moreover, juror No. 10 did speak to the “point in the deliberations
the conversations took place.” According to juror No. 10, the issue was “heavily
discussed” when the jury was deciding damages. This statement also provides the
context in which the discussions were had.
The averments discussed above are sufficient to establish jury misconduct.10
10 In determining whether the new trial order should be affirmed or reversed, we do
not consider juror No. 6’s statement that he “personally wondered why … Martinez did
not use her insurance for the injuries.” The statement, which consists of juror No. 6’s
mental processes, was not “ ‘ “ ‘open to sight, hearing, and the other senses’ ” ’ ” and,
therefore, was not capable of corroboration. (See Johnson, supra, 222 Cal.App.4th at
pp. 494–495.) We also do not consider juror No. 10’s statement that a number of jurors
expressed reluctance to provide Martinez with a large award. That statement is, arguably,
inadmissible because it relates to juror mental processes, and the expression of such
reluctance is not, of itself, misconduct. (See fn. 9, ante.)
24.
VI. Prejudice
Contreras argues “there is not substantial evidence to prove that the jury allowed
sympathy to influence their decision.” “The test for prejudice is whether there is a
reasonable probability that a result more favorable to the moving party would have been
obtained in the absence of the juror misconduct.” (TRC Operating Co., Inc. v. Chevron
USA, Inc., supra, 102 Cal.App.5th at p. 1063.)
Once juror misconduct is established through admissible evidence, the misconduct
“is presumptively prejudicial” and “the burden is on the [party opposing the new trial
motion] to ensure the record is sufficient to overcome the presumption.” (Lankster,
supra, 15 Cal.App.4th at pp. 680–681.) Unless the presumption is rebutted “by proof that
no prejudice actually resulted, the [moving party] is entitled to a new trial.” (People v.
Sutter, supra, 134 Cal.App.3d at p. 819.)
“In People v. Honeycutt (1977) 20 Cal.3d 150 … our Supreme Court announced:
‘It is well settled that a presumption of prejudice arises from [any] juror misconduct.…
However, the presumption may be rebutted by proof that no prejudice actually resulted.’
[Citation.] Accordingly, there is no need for the misconduct to consist of statements or to
show actual bias or prejudgment in order to invoke the presumption of prejudice. [¶]
Overt acts, such as the communication of facts obtained outside the evidence presented at
trial to the other jurors … constitute juror misconduct, and thus, give rise to the
presumption of prejudice even though such acts do not necessarily reflect any bias or
prejudgment on the part of the communicating juror. [¶] Moreover, once acts of jury
misconduct are established, the presumption of prejudice becomes conclusive unless
rebutted by the prevailing party.” (Jones v. Sieve (1988) 203 Cal.App.3d 359, 367, italics
added.)
A party may overcome the presumption “by an affirmative evidentiary showing
that prejudice does not exist or by a reviewing court’s examination of the entire record to
determine whether there is a reasonable probability of actual harm to the complaining
25.
party resulting from the misconduct.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388,
417.) Under the latter review, “[a]ll pertinent portions of the entire record, including the
trial record, must be considered.” (In re Carpenter (1995) 9 Cal.4th 634, 654.) The latter
option is unavailable to Contreras due to his decision to only supply this reviewing court
with the parties’ new trial motion moving and opposition papers, and the court’s jury
instructions and rulings. Contreras chose to proceed without a reporter’s transcript11 and
did not include in the record on appeal most trial exhibits and other pleadings that were
filed in the matter (e.g., complaint, answer, motions in limine, etc.).12
Contreras contends “[t]here is no indication that, even if at-issue discussions
occurred, that they had any impact on the jury’s verdict. As explained in [Contreras’s]
Opposition to Motion for New Trial, there was sufficient evidence to support the jury’s
verdict.” Contreras cites only to his brief in opposition to Martinez’s new trial motion.
The evidence submitted in opposition to the new trial motion appears to be excerpts of
trial testimony given by Martinez, third party witnesses, and expert witnesses. Although
Contreras cites to his brief in opposition to the new trial motion, he does not discuss the
aforementioned evidence in his opening brief on appeal, does not cite to any of the
evidence that the brief references, and does not explain how that evidence overcomes the
presumption of prejudice that has attached in this matter.
11 The moving and opposition papers did contain portions of the reporter’s trial
transcript consisting of selected testimony from the parties, third parties, and expert
witnesses, as well as an exhibit purportedly shown to the jury during direct examination.
It is clear from our review that the foregoing comprises only a small fraction of the trial
testimony that would have occurred during the course of the eight-day trial.
12 Contreras’s citation to Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th
924, for the proposition that a reporter’s transcript is unnecessary is inapposite. (Id. at
p. 933.) That case involved a challenge to an order denying a defendant’s motion to
strike under the anti-SLAPP statute (§ 425.16). (Bel Air, at pp. 928–929.) It did not
involve a challenge to a new trial motion.
26.
“ ‘In order to demonstrate error, an appellant must supply the reviewing court with
some cogent argument supported by legal analysis and citation to the record.’ ” (United
Grand Corp. v. Malibu Hillbillies, LLC, supra, 36 Cal.App.5th at p. 146.) An appellate
court is “not required to examine undeveloped claims or to supply arguments for the
litigants.” (Shaw v. Los Angeles Unified School Dist., supra, 95 Cal.App.5th at p. 754.)
Consequently, the argument that the presumption of prejudice has been rebutted by the
brief excerpts of trial testimony contained in Contreras’s opposition to the new trial
motion is forfeited on appeal.
Contreras has not met his burden of demonstrating that no prejudice occurred as a
result of jury misconduct.
“On appeal from an order granting a new trial the order shall be affirmed if it
should have been granted upon any ground stated in the motion, whether or not specified
in the order or specification of reasons.” (§ 657.) We conclude the trial court did not
abuse its discretion in granting Martinez’s new trial motion.
DISPOSITION
The new trial order is affirmed. Martinez is entitled to her costs on appeal.
DE SANTOS, J.
WE CONCUR:
FRANSON, Acting P. J.
SNAUFFER, J.
27.
Filed 10/9/26 – Order Granting Publication
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
ALESHIA MARTINEZ,
F090026
Plaintiff and Respondent,
(Super. Ct. No. 22CECG00728)
v.
ORDER GRANTING REQUEST
ANTONIO CONTRERAS, FOR PUBLICATION
Defendant and Appellant.
On October 6, 2026, this court received and filed a request for publication of the
nonpublished opinion filed on October 5, 2026, in the above entitled matter. It appearing
that the nonpublished opinion meets the standards for publication specified in the
California Rules of Court, rule 8.1105(c), it is ordered that the opinion be certified for
publication in the Official Reports.
DE SANTOS, J.
WE CONCUR:
FRANSON, Acting P. J.
SNAUFFER, J.
1.