Filed 9/8/26 Salinas v. Ortiz CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
NICOLE SALINAS et al., B333235
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No.
v. BC569227)
FERNANDO GALVIS ORTIZ,
Defendant and Appellant;
NISSAN NORTH AMERICA, INC.
et al.,
Defendants and
Respondents.
APPEALS from a judgment of the Superior Court of Los
Angeles County, J. Stephen Czuleger, Judge. Affirmed.
The Homampour Law Firm, Arash Homampour, Corey C.
Arzoumanian, Nareen M. Touloumdjian; The Ehrlich Law Firm,
Jeffrey I. Ehrlich; The Torkzadeh Law Firm and Reza Torkzadeh
for Plaintiffs and Appellants Nicole Salinas, Shanel Salinas, and
Alisa Beasley.
Horvitz & Levy, Lisa Perrochet, Robert H. Wright;
Hinshaw & Culbertson, Robert L. Reisinger and Jeanette D.
Lawrence for Defendant and Appellant Fernando Galvis Ortiz.
Klein Thomas Lee & Fresard, Paul R. Lee, Gregory P.
Gilmer, and Brandon L. Boxler for Defendants and Respondents
Nissan North America, Inc., Nissan Technical Center North
America, Inc., Nissan Design America, Inc., HNL Automotive,
Inc., and Calsonic Kansei North America, Inc.
******
A young woman suffered severe and traumatic brain
injuries when the 2011 Nissan Altima in which she was a
passenger was “T-boned” in an intersection by a Ford F-150 truck
traveling 70 miles per hour. The injured woman (and her sister)
sued Nissan for defectively designing the side airbag system (and
for failing to warn of that defect), and sued the Ford F-150’s
driver, whom the police determined was under the influence of
alcohol. After a multi-week trial, the jury found that the airbag
system was not defective, found that the driver was accordingly
100 percent liable for her injury, and awarded the severely
injured woman more than $20 million in damages. The woman
appeals the trial court’s refusal to grant a new trial based on
instructional error and jury misconduct. The driver cross-appeals
2
the trial court’s rulings precluding him from disputing that he
was the driver and rejecting his argument that the woman had
agreed to accept a $30,000 settlement with his insurance
company. Because these challenges to the verdict lack merit, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The collision
In the early morning hours of Sunday, May 11, 2014, a
Ford F-150 truck slammed into the passenger side of a 2011
Nissan Altima where Manchester Boulevard and Vermont
Avenue intersect in the City of Los Angeles. The truck was
traveling over 70 miles per hour as it approached the
intersection, but the driver applied the brakes at the last minute,
reducing its speed to 54 to 58 miles per hour at the moment of
impact.
Based on eyewitness testimony, the position of the driver’s
seat, and what a responding officer witnessed, the Los Angeles
Police Department determined that Fernando Galvis Ortiz
(Ortiz) was driving the Ford F-150 truck. After administering
several field sobriety tests, the police also determined that Ortiz
was under the influence. Ortiz’s mother and stepfather were also
in the truck; at the scene, the stepfather told police that he was a
passenger.
The driver of the 2011 Altima was Nicole Salinas (Nicole).1
Shanel Salinas (Shanel) was asleep in the front passenger seat.
The Nissan’s side impact airbag deployed upon impact. Shanel
suffered two traumatic brain injuries—namely, (1) a diffuse
1 Because the Salinas sisters share the same last name, we
use their first names for clarity. We mean no disrespect.
3
axonal injury (that is, a shearing of brain tissue due to abrupt
movement of the brain), and (2) hypoxia (that is, a temporary
deprivation of oxygen to the brain). Shanel’s skull had no
fractures, and her forehead had abrasions consistent with
rubbing across the surface of a deployed airbag. As a result of
the brain injuries, Shanel had to re-learn how to walk and talk,
and will suffer severe cognitive defects for the rest of her life that
will necessitate she receive 24-hour care.
B. Ortiz’s plea to felony DUI
The People charged Ortiz with the felony crime of driving
under the influence (DUI) causing injury (Veh. Code, § 23153,
subd. (a)) and further alleged that he had personally caused great
bodily injury to Shanel (Pen. Code, § 12202.7, subd. (b)). Ortiz
faced a maximum prison sentence of 11 years.
After Ortiz’s first trial ended with a hung jury, Ortiz on
March 3, 2016 entered a guilty plea to the felony DUI charge and
admitted the personal great bodily injury enhancement. During
the plea colloquy, Ortiz was specifically asked, “You admit
driving on the date of the incident?” and he said, “Yes.” Pursuant
to the plea agreement, the trial court imposed an eight-year
prison sentence, suspended the execution of that sentence, and
placed Ortiz on formal probation for five years with a
requirement that he complete 500 hours of community service;
the net effect was that Ortiz served no prison time.
II. Procedural Background
A. Complaint
On January 14, 2015, Shanel (through a guardian ad litem)
and Nicole (collectively, plaintiffs) sued Nissan (as the
4
manufacturer of the 2011 Altima) and Ortiz.2 Against Nissan,
plaintiffs alleged claims for defective design of the side airbag
system as well as failure to warn of its dangers, under both strict
liability and negligence theories. Against Ortiz, plaintiffs alleged
negligence.
B. Trial and verdict
The matter proceeded to a 19-day jury trial in the spring of
2023.
Regarding plaintiffs’ design defect (and related failure to
warn) claims, the trial was largely a battle of the experts. On
plaintiffs’ side, several experts opined that (1) the 2011 Altima’s
side airbag did not inflate to full capacity and thus had a “dead
zone” (where the airbag inflated less) located in front of the
interior pillar that connected the car’s roof to its chassis between
the front and rear passenger seats (called the “B-pillar”), and (2)
Shanel’s head struck the B-pillar as a result of this “dead zone,”
which caused her brain injuries. On Nissan’s side, several
experts opined that (1) the 2011 Altima’s side airbag system did
not have a defective design in light of all of the testing Nissan
2 Plaintiffs also sued the designer of the airbag (Autoliv);
sued the dealership where plaintiffs had purchased the 2011
Altima (HNL Automotive, Inc., which was doing business as
Hooman Nissan of Culver City); sued TRW Vehicle Safety
Systems; and sued several other Nissan-related entities (namely,
Nissan Technical Center North America, Nissan Design America,
Nissan North America). Plaintiffs settled with Autoliv prior to
the trial. The parties stipulated that Nissan Motor Corp.,
Limited, Nissan North America, Inc., and HNL Automobile were
“one and the same.” The record on appeal does not disclose why
plaintiffs did not proceed to trial against the remaining
defendants.
5
performed on the system before implementing it, and (2) the
nature of Shanel’s physical injuries (chiefly, the lack of any skull
fracture and abrasions consistent with impact with a deployed
airbag) confirm that her head struck a fully inflated side airbag
and not the B-pillar. The trial court instructed the jury on both
the consumer expectations and cost-benefit tests for assessing
whether there was a design defect, and also instructed the jury
on the failure to warn theory.
Regarding plaintiffs’ negligence claim against Ortiz, the
trial court instructed the jury that Ortiz “agrees that he was
negligent, but denies that the negligence caused [p]laintiffs the
full extent of their harm.”
After one day of deliberations, one of the jurors (Juror
Moran) became ill. With the parties’ concurrence, the trial court
substituted an alternate juror and instructed the newly
constituted jury to “set aside and disregard all past deliberations
and begin [its] deliberations all over again.”
In a special verdict form, the jury found, by a 10-2 vote,
that the 2011 Altima side airbag system “perform[ed] as safely as
an ordinary consumer would have expected,” that the “benefits”
of the system’s design “outweigh[ed] the risks of [its] design,” and
that Nissan did not fail to warn of any defects; as a consequence,
the jury found that Nissan was not at all “responsibl[e] for
Shanel’s harm.” The jury found that Ortiz was “100 percent”
responsible for her harm. The jury awarded Shanel damages of
$20,641,626, and Nicole damages of $100,000.3
3 Shanel’s damages consisted of $358,241 in lost past
earnings; $2,056,005 in lost future earnings; $13,727,380 in
future medical expenses; $1 million in past noneconomic loss; and
$3.5 million in future noneconomic loss. Nicole’s damages
6
C. Motion for new trial
After the entry of judgment, plaintiffs filed a motion for
new trial on several grounds. As pertinent here, plaintiffs argued
that (1) the trial court erred in not giving plaintiffs’ Special
Instruction No. 1 addressing the weight to be given to evidence of
Nissan’s compliance with federal safety standards, and (2) jury
misconduct. After further briefing, and a hearing, the trial court
on September 8, 2023 denied the motion.4
D. Appeal and cross-appeal
Plaintiffs timely appealed. Ortiz also timely appealed.
DISCUSSION
I. Plaintiffs’ Appeal
Plaintiffs concede that substantial evidence supports the
jury’s verdict in Nissan’s favor. Instead, they argue that the trial
court erred in denying their motion for new trial due to an
instructional error and due to jury misconduct. (Code Civ. Proc.,
§ 657, subds. (2) & (7) [new trial appropriate for “[m]isconduct of
the jury” or an “[e]rror in law,” respectively]; Bristow v. Ferguson
(1981) 121 Cal.App.3d 823, 826 [“An erroneous or misleading
instruction is an error in law.”])
consisted of $50,000 in past noneconomic loss, and $50,000 in
future noneconomic loss.
4 Ortiz also filed a partial motion for a new trial, seeking an
offset of damages due to plaintiffs’ earlier settlement with the
airbag manufacturer, Autoliv. The trial court granted Ortiz’s
partial motion and reduced the damages award by a $3,705,000
offset.
7
A. Claim of instructional error
1. Pertinent facts
a. Overview of evidence presented at trial
During the trial, Nissan presented evidence that the 2011
Altima’s side airbag system met the federal requirement for
safety promulgated by the National Highway Traffic Safety
Administration (NHTSA) by passing NHTSA’s deformable
barrier test for side airbags, and met the industry standard for
safety set by the Insurance Institute for Highway Safety (IIHS)
by passing IIHS’s deformable barrier test for side airbags.
b. Opening statements
Anticipating Nissan’s evidence of compliance with these
testing requirements and standards, plaintiffs argued in their
opening statement that “a vehicle can pass government testing
and still be unsafe.”
In its opening statement, Nissan indicated that it subjected
the 2011 Altima to the NHTSA and IIHS safety tests, and that it
also performed several tests that went beyond the NHTSA
requirements and the IIHS standard—namely, (1) a pole impact
test of the side airbag before that test became mandatory in 2013,
and (2) a deformable barrier test at a speed five miles per hour
faster than the NHTSA’s deformable barrier test.
c. Expert testimony during trial
Three of plaintiffs’ expert witnesses testified that the
NHTSA safety standards were “minimum standards” that set a
“floor, not a ceiling,” such that compliance with those tests did
not mean that 2011 Altima’s side airbag system was not
defective.
Nissan’s experts did not dispute this principle. One of
those experts acknowledged Nissan’s commitment to “go[ing]
8
above and beyond government requirements to ensure [its] cars
are safe.” Other Nissan experts noted that Nissan’s testing of the
2011 Altima’s side air bag system went beyond what the NHTSA
safety regulations required because Nissan performed the IIHS
deformable barrier test, conducted the NHTSA test at a higher
speed, and conducted the pole impact test at a time when NHTSA
had yet to make that test a requirement.
d. Plaintiffs’ Special Instruction No. 1
Prior to closing arguments, plaintiffs requested that the
trial court give Special Instruction No. 1, which provided that
“Compliance with a Federal Motor Vehicle Safety Standard or
[R]ule does not exempt a person from liability at common law.
‘Person’ includes a nonperson party.” Plaintiffs urged that this
instruction was necessary to ensure that the jury was not
“misled” into thinking that Nissan’s evidence of compliance with
the NHTSA safety requirement was enough by itself to “exempt
Nissan from liability.” Nissan denied that it had made such an
argument. The trial court asked whether Nissan was “going to
argue that . . . compliance . . . excuses Nissan.” When Nissan
indicated it would not, the court declined to give the instruction
with the provision that it would revisit its ruling if Nissan
“mak[es] that argument.”
e. Nissan’s closing argument and plaintiffs’
renewed request for Special Instruction No. 1
During its closing argument, Nissan argued that the 2011
Altima side airbag system satisfied the NHTSA safety
requirement, met the IIHS industry standard, and passed the
additional tests Nissan performed that were neither required by
NHTSA nor the IIHS. As plaintiffs concede, at no point did
9
Nissan ever assert that its compliance with the NHTSA safety
requirement excused it from liability.
After Nissan completed its closing argument, plaintiffs
renewed their request for Special Instruction No. 1 on the ground
that Nissan’s mention of government testing “impli[ed]” that
compliance with that testing exempted Nissan from liability. The
trial court denied the request, finding that Nissan’s “touching” on
the topic of “government test[ing]” was insufficient to warrant the
instruction.
f. New trial motion
In their new trial motion, plaintiffs argued that the trial
court’s refusal to give Special Instruction No. 1 was an “error in
law” mandating a new trial. In support of their motion, plaintiffs
submitted a declaration from one of two dissenting jurors (Juror
Diaz), who stated that two other jurors had voiced their view that
“the . . . Altima car must have been safe because it passed all the
government tests”—and that “six to seven other” jurors “agreed”
with that sentiment. Plaintiffs also submitted a declaration from
the juror who was excused due to illness before the deliberations
started anew (Juror Moran), who said that during the aborted
deliberations, “six or seven jurors discussed . . . the number of
tests” performed.5
Along with its opposition to the motion, Nissan submitted
declarations from two jurors who participated in the second set of
5 Juror Moran also stated that “six or seven jurors gave
weight to the number of tests the Nissan Altima car passed” and
that “if the instruction had been given it would have helped us
and changed minds”, but plaintiffs concede on appeal that these
statements regarding how jurors weighed or would have
evaluated the evidence are inadmissible under Evidence Code
section 1150. The latter statement is also wholly speculative, as
10
deliberations, each of whom acknowledged that the jurors
discussed the various tests Nissan performed but each of whom
confirmed that no juror “said that Nissan could not be liable just
because the [2011] Altima met governmental safety standards or
passed certain tests.”
The trial court rejected plaintiffs’ claim of instructional
error. The court noted the “great deal of evidence” “throughout
the trial” on “testing, approvals and safety consideration[s].” The
court found Nissan’s mention of “the totality of that testing” in
closing argument “did not go over the line and mislead the jury”
into treating compliance with the NHTSA (or even the IIHS)
standards as being a complete defense. The court also found a
“lack of prejudice.”
2. Analysis
Plaintiffs argue that the trial court erred in not instructing
the jury with Special Instruction No. 1. We evaluate de novo this
claim of instructional error. (People v. Parker (2022) 13 Cal.5th
1, 66 (Parker).)
A manufacturer’s compliance with federal safety standards
(or, for that matter, compliance with industry custom) is relevant
to the question whether the product at issue was defectively
designed. (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 548;
Hernandez v. Badger Construction Equipment Co. (1994) 28
Cal.App.4th 1791, 1830-1831; Kim v. Toyota Motor Corp. (2018) 6
Cal.5th 21, 34-36 (Kim) [same, as to industry custom].) But such
compliance is not dispositive, and thus does not by itself
constitute a “complete defense”; federal safety standards erect a
“minimum,” such that a product complying with those standards
it turns on how Juror Moran thought other jurors would have
subjectively evaluated the evidence.
11
may still fail to meet the consumer expectations or risk-benefit
tests for a design defect under tort law. (Ramirez, at pp. 547-548;
Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 547
[“satisfaction of the [federal] standards would not constitute a
complete defense”]; Pannu v. Land Rover North America, Inc.
(2011) 191 Cal.App.4th 1298, 1321 [“compliance with federal
motor vehicle safety standards does not preclude liability for
defective design”]; 49 U.S.C. § 30103(a); Stevens v. Parke, Davis
& Co. (1973) 9 Cal.3d 51, 65 [same, as to failure to warn claims].)
In this case, Nissan elicited evidence that the side airbag
system in the 2011 Altima complied with the NHTSA safety
standard. This evidence of compliance is relevant to the question
of whether the side airbag system was defective. Because Nissan
at no point elicited testimony or argued that compliance with the
NHTSA standard was dispositive of its liability, Special
Instruction No. 1 was not necessary to rebut a defense that was
never advanced. (Fox v. City & County of San Francisco (1975)
47 Cal.App.3d 164, 173 [“instruction” that is “abstractly correct
as a statement of law” need not be given if “it is not within the
issues developed by the evidence or [the] reasonable inferences
therefrom”].) We reject plaintiffs’ suggestion that the
presentation of NHTSA compliance necessarily implied that
compliance should be viewed as a complete defense because that
implication is not reasonable on this trial record—where one of
Nissan’s experts frankly acknowledged that Nissan went “above
and beyond” federal compliance and where Nissan’s voluntary
undertaking of several additional tests that went above and
12
beyond NHTSA compliance refuted any notion that simple
compliance with NHTSA standards was enough.
Plaintiffs respond with what boils down to a single
argument. Specifically, plaintiffs argue that Special Instruction
No. 1 is a request for a limiting instruction and that Kim, supra,
6 Cal.5th 21, 38 holds that, if requested, a “trial court must issue
a jury instruction that explains how” evidence of industry custom
“may and may not be considered” in a design defect case. (Italics
added.) Even if we assume for the sake of argument that Special
Instruction No. 1 is a limiting instruction (because it would
permit the jury to consider NHTSA compliance as relevant, but
prohibit the jury from treating such compliance as dispositive),
and even if we adhere to Evidence Code section 355’s mandate
that a court “shall . . . instruct the jury” when a limiting
instruction is requested, we reject plaintiffs’ argument because
any error in failing to give Special Instruction No. 1 is not
prejudicial.6 (People v. Housley (1992) 6 Cal.App.4th 947, 958-
959 [failure to give a limiting instruction aimed at stopping
“potential for misuse” of evidence is evaluated for prejudice];
People v. Gonzalez (1978) 81 Cal.App.3d 274, 279 [failure to give
a limiting instruction is evaluated for prejudice].) Here, there is
no reasonable probability that the instruction would have
affected the outcome of this case because Nissan at no point
expressly or implicitly defended on the ground that the 2011
Altima’s compliance with the NHTSA standards was dispositive
or a complete defense to plaintiffs’ claims. Nor do the juror
6 Plaintiffs’ also seem to suggest that the failure to give
Special Instruction No. 1 is a structural error, but that argument
ignores the prejudice requirement that applies to instructional
errors.
13
declarations show any prejudice: Taken as a whole, they
undisputably indicate that the jury treated the tests as relevant
but not dispositive, which is in accord with the law. We
accordingly reject as inaccurate plaintiffs’ mischaracterization of
the 2011 Altima’s compliance with the NHTSA standard as being
the “centerpiece” of Nissan’s defense.
B. Jury misconduct claim
1. Pertinent facts
a. Voir dire of Juror Zepeda
At the outset of questioning by the trial court, Juror Zepeda
told the trial court that, “sometimes when [she] get[s] nervous,
[her] English is not that good.” The trial court then asked her if
she had “been able to understand” the voir dire thus far, and she
said “yes.” The court then proceeded to ask Juror Zepeda dozens
of questions, such as whether she had belonged to any
organizations dealing with issues concerning civil law; whether
she had been a litigant or knew anyone in the law; whether she
had any medical training or work; whether she had ever suffered
a serious medical problem; whether she had ever worked in the
auto industry; whether she had ever invested in Nissan; whether
she had any training as an engineer; and whether she would be
comfortable deliberating with 11 strangers on a jury. Juror
Zepeda provided appropriate, responsive answers to all of those
questions. She also gave longer responses to questions about
whether she had ever “witnessed” a “T-bone” accident, about why
she would be a “fair juror,” and about her personal background.
In response to a question by plaintiffs’ counsel, she also shared
14
her “thoughts on th[e] concept of awarding damages for pain and
suffering.”
After plaintiffs and Ortiz passed on any challenge for cause
to Juror Zepeda, Nissan asserted such a challenge, citing a
“language issue”—namely, its belief that Juror Zepeda was “able
to conduct a simple conversation but she is not going to
understand the medical and engineering testimony.” The trial
court overruled the challenge, explaining that “[i]t’s her
nervousness,” which is “why [the court] talked to her for a few
minutes . . . before [it] started asking her questions, and she
understood what [the court] was saying.”
b. Request for translation of verdict form
On the first day of deliberations (before Juror Moran was
excused and thus before deliberations started anew), the jury
sent out a note “requesting that the questions [in the verdict
form] be translated in[to] Spanish.” With the concurrence of the
parties, the trial court responded in writing: “Regarding your
note requesting a translation into Spanish of the verdict form,
California law requires the proceedings must be conducted in
English and therefore we cannot provide a Spanish translation of
the verdict form.”
c. New trial motion
In their new trial motion, plaintiffs argued that the jury
engaged in misconduct because Juror Zepeda regularly spoke
Spanish with other jurors and needed assistance in
understanding the English-language jury instructions and
verdict form. In support of their motion, plaintiffs submitted a
declaration from Juror Diaz (one of the two dissenting jurors),
who recounted that the jury note requesting translation of the
verdict form was prompted by an earlier discussion in which
15
Juror Zepeda indicated she did not understand “the questions on
the verdict form” and that two other jurors (Jurors Maldonado
and Moran) “attempted to translate the jury instructions and the
verdict” form. Juror Diaz also indicated that Juror Moran
“translated into Spanish some of the things that happened during
trial for [Juror] Zepeda.” Juror Moran (who was excused for
illness) submitted a declaration indicating that she and Juror
Maldonado “translated for [Juror Zepeda] during deliberations.”
Along with its opposition to the new trial motion, Nissan
submitted declarations from Juror Joyce, who reported that Juror
Zepeda “wasn’t sure about one or two technical terms” but that
Juror Zepeda otherwise “understood most if not all the questions”
on the special verdict form and that she “participated in the
[deliberative] discussions in English.”
The trial court rejected plaintiffs’ claim of juror misconduct.
The court struck the juror declarations submitted by both parties,
finding that they were “incompetent to attack the verdict in this
case” under Evidence Code section 1150, and that they “are
nothing more than the musings of disgruntled jurors, wild
speculation as to the meaning of conversations, and/or rank
hearsay.” The court further noted that the declarations “are not
in everyday language but rather in the language intended to
support the plaintiffs’ . . . points,” which “ma[de] them more
suspect.” The court went on to rule that, even if it were to
consider the declarations, Juror Zepeda was competent to serve
as a juror because “a review of the entire record shows that [she]
had the ability to deliberate effectively.” The court noted that
Juror Zepeda “was fully voir dired before trial, and she answered
questions appropriately after trial.” And the court noted that,
after examining “thousands of jurors” in “hundreds and hundreds
16
of trials” “over 35 years,” it did not see any “language issues” for
Juror Zepeda that rendered her incompetent to serve. The court
went on to further rule that the jurors’ translation of a few terms
was also not misconduct, explaining that “this case involves some
difficult engineering and medical testimony,” that it “would be no
wonder that a juror might have some difficulty understanding
certain concepts whether the principles be in English or
Spanish,” and that “jurors are expected to assist each other” in
“discuss[ing] the evidence and attempt[ing] to understand it”;
thus, the court found “nothing untoward” in the translation of a
few terms on the verdict form.
2. Analysis
In asserting juror misconduct, plaintiffs more specifically
argue on appeal that (1) Juror Zepeda was unqualified to serve
due to her inability to understand English,7 and (2) the conduct of
other jurors translating for Juror Zepeda introduced extrinsic
evidence into the jury’s deliberations that independently voids
the jury’s verdict, even if Juror Zepeda were qualified to serve.
In evaluating claims of juror misconduct in a new trial
motion, trial courts are to “undertake[] a three-step process.”
(Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 278;
Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345.) First, the
court must “determine whether the [juror] declarations
supporting the motion are admissible . . .” (Hernandez, at p. 278.)
“Second, if all or part of the declarations are admissible,” the
court must “determine[] whether the facts establish misconduct.”
(Ibid.) And third, “[if] the . . . court finds misconduct,” it must
7 Although plaintiffs appeared to disavow this challenge
during oral argument, we nevertheless respond to the arguments
raised in the briefing regarding this challenge.
17
“determine[] whether the misconduct was prejudicial.” (Ibid.)
Although the party seeking to invalidate a jury verdict on the
basis of jury misconduct bears the burden of proving both
misconduct and prejudice (Barboni, at p. 349), the latter burden
is eased by the presumption of prejudice that arises once there is
a finding of jury misconduct; the presumption is rebutted upon a
showing that there was no “reasonable probability of actual harm
to the” party seeking to invalidate the verdict. (Hasson v. Ford
Motor Co. (1982) 32 Cal.3d 388, 416-417.) In reviewing the denial
of a new trial motion based on juror misconduct, we accept the
trial court’s credibility determinations and any factual findings
that are supported by substantial evidence. (Hernandez, at p.
278; People v. Flores (2021) 70 Cal.App.5th 100, 109.)
a. Juror Zepeda’s competency to serve as a juror
A juror who lacks “sufficient knowledge of the English
language to understand the legal proceedings and the evidence
upon which [the] juror would base . . . her decision in any given
case” is not competent to serve as a juror. (People v. Eubanks
(2011) 53 Cal.4th 110, 130; People v. Lomax (2010) 49 Cal.4th
530, 566-567; Code Civ. Proc., § 203, subd. (a)(6).) Sufficient
knowledge of the English language does not mean complete
mastery; the fact that a juror has “some language difficulty is
insufficient” to render her incompetent to serve. (People v. Elam
(2001) 91 Cal.App.4th 298, 316.) A trial court may dismiss a
juror for her competency after trial has begun only if that
incompetence appears in the record as a “demonstrable reality.”
(People v. Armstrong (2016) 1 Cal.5th 432, 450; People v.
18
Cleveland (2001) 25 Cal.4th 466, 474; People v. Szymanski (2003)
109 Cal.App.4th 1126, 1131.)
The trial court did not err in denying plaintiffs’ new trial
motion on the ground that Juror Zepeda’s difficulty with the
English language rendered her incapable of serving on the jury.
As a threshold matter, the court did not abuse its discretion in
discounting Juror Diaz’s declaration; apart from the possible
inadmissibility of portions of that declaration under Evidence
Code section 1150, the trial court found the declaration not to be
credible (based on it coming from a disgruntled juror and its
“suspect” verbiage). We cannot second guess that credibility
finding on appeal. (Weathers v. Kaiser Foundation Hospitals
(1971) 5 Cal.3d 98, 109 [“weighing the credibility of conflicting
declarations on a motion for new trial is uniquely within the
province of the trial court”].) At most, there is evidence that
Juror Zepeda needed help understanding “one or two technical
terms” on the verdict form. That is insufficient to render her
incompetent to serve as a juror. And even if we assume that she
was incompetent, and that the presumption of prejudice is
triggered, that presumption was rebutted. Juror Zepeda’s
inability to understand the verdict form at most affected Juror
Zepeda; it did not affect any other juror’s inability to read and
understand the English-language jury instructions and verdict.
Because the vote was 10-2 for Nissan, with Juror Zepeda voting
in the majority, removing her from the jury leaves a vote of 9-2
for Nissan. This falls far short of the votes plaintiffs would need
to change the outcome. (Accord, TRC Operating Co., Inc. v.
Chevron USA, Inc. (2024) 102 Cal.App.5th 1040, 1089-1090
[noting propriety of looking to vote count where incompetency of
one juror is not likely to influence other jurors].)
19
b. Translation for Juror Zepeda as introducing
extrinsic evidence into jury deliberations
Jury misconduct also occurs if “‘jurors . . . receive or
communicate to fellow jurors information from sources outside
the evidence presented in court.’” (English v. Lin (1994) 26
Cal.App.4th 1358, 1363-1364.)
The trial court did not err in denying plaintiffs’ new trial
motion on the ground that jurors’ translation of a few terms for
Juror Zepeda into English constituted jury misconduct.
To begin, the trial court did not err in concluding that there
was no misconduct. As a matter of proof, there is no evidence
that any juror engaged in any improper translating during the
deliberations that resulted in the verdict. Juror Diaz reported
that a few jurors assisted Juror Zepeda prior to the jury note.
But after that note was issued and the court told the jury to
proceed in English, Juror Moran left the jury and the jury was
ordered to restart its deliberations. Because the jury is presumed
to follow that admonition in the absence of evidence to the
contrary (People v. Collins (1976) 17 Cal.3d 687, 694 [expressing
“confiden[ce] that juries . . . will faithfully follow . . . instructions”
to deliberate anew], superseded on other grounds by statute as
stated in People v. Boyette (2002) 29 Cal. 4th 381, 462, fn. 19),
there is no evidence of any improper translation during the
operative jury deliberations. Alternatively, the acts of a handful
of jurors explaining the meaning of terms on the English-
language verdict form to Juror Zepeda did not necessarily
constitute misconduct through the introduction of extrinsic
evidence. Plaintiffs cite People v. Cabrera (1991) 230 Cal.App.3d
300, for the proposition that a juror’s translation from Spanish to
English impermissibly injects extrinsic evidence into the jury’s
20
deliberations, but Cabrera involved a juror who translated a
Spanish-language audiotape presented at trial in a manner that
contradicted the English-language translation admitted into
evidence (id. at pp. 303-304); here, by contrast, the few jurors
who assisted Juror Zepeda by translating a few words of the
instructions or verdict form did not contradict any official
translations admitted into evidence. Indeed, plaintiffs concede
that any translations made by the other jurors were accurate.
And even if we assume there was jury misconduct, the
presumption of prejudice has been rebutted. Juror Zepeda’s
consideration of the extrinsic translation of words in the jury
instructions or verdict form from English into Spanish did not
affect any other juror’s ability to read or understand the English-
language instructions or verdict form; were we to remove Juror
Zepeda from the mix, the verdict would still be 9-2 in favor of
Nissan. Plaintiffs dispute this reasoning, citing cases where the
extrinsic evidence infected the entire jury—but those cases deal
with extrinsic evidence of racism (Tapia v. Barker (1984) 160
Cal.App.3d 761, 765), with evidence that one juror joked with
other jurors about pre-judging the case (Deward v. Clough (1966)
245 Cal.App.2d 439, 442), or with the wholly distinct error of not
allowing criminal defense counsel to participate in discussions of
how to address a juror’s incompetence due to language difficulties
(People v. Heaps (2026) 118 Cal.App.5th 294, 300-314).
II. Ortiz’s Appeal
In his appeal, Ortiz argues that the trial court erred (1) in
precluding him from introducing evidence that he was not the
driver of the Ford F-150 at the time of the accident because that
evidence would contradict Ortiz’s earlier guilty plea to felony
21
DUI, and (2) in granting summary adjudication of his affirmative
defense that he had already settled with plaintiffs for $30,000.8
A. Preclusion of evidence of another driver
1. Pertinent facts
In a pre-trial conference, plaintiffs moved to exclude all
evidence that Ortiz was not the driver of the Ford F-150 at the
time of the collision on the ground that Ortiz had entered a guilty
plea with very favorable terms that was premised on Ortiz being
the driver, and Ortiz should be judicially estopped from taking a
contrary position in the upcoming trial. After considering two
sets of opposition papers by Ortiz, the trial court granted the
motion. “Having obtained the benefits of his plea,” the court
reasoned, Ortiz “should not now be allowed to come into this
court and take a contrary position”; “[j]udicial estoppel,” the court
ruled, “applies with full force here.”
The court went on to inform the jury in the statement of
the case that Ortiz was driving the Ford F-150.
Prior to the close of evidence, Ortiz put on an offer of proof
as to the evidence he would introduce to substantiate that he was
not driving, including statements of his mother and stepfather
that the stepfather—not Ortiz—was driving the Ford F-150 at
the time of the collision.
The trial court adhered to its prior ruling and instructed
the jury that Ortiz was negligent and that the sole question for
the jury was the extent of his contribution to plaintiffs’ injuries.
2. Analysis
Ortiz argues that the trial court erred in precluding the
admission of evidence that he was not driving the Ford F-150 and
8 Nissan has indicated it has no position on either issue,
other than the scope of remand were we to agree with Ortiz.
22
in instructing the jury that he was. We review de novo
instructional errors. (Parker, supra, 13 Cal.5th at p. 66.) We
independently review whether judicial estoppel is proper on the
record, and review for an abuse of discretion the trial court’s
decision whether to apply the doctrine. (Filtzer v. Ernst (2022) 79
Cal.App.5th 579, 583-584.)
“The doctrine of judicial estoppel precludes a party from
taking inconsistent positions in separate judicial proceedings.”
(The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 841
(Swahn Group).) The doctrine “precludes a party from gaining an
advantage by taking one position, and then seeking a second
advantage by taking an incompatible position.” (People v.
Castillo (2010) 49 Cal.4th 145, 155.) The doctrine is aimed at
“maintain[ing] the integrity of the judicial system” by precluding
parties from committing a “fraud on the courts” and otherwise
“pervert[ing] the judicial machinery.” (Aguilar v. Lerner (2004)
32 Cal.4th 974, 986; Blix Street Records, Inc. v. Cassidy (2010)
191 Cal.App.4th 39, 47; Swahn Group, at p. 841.) “The doctrine
applies when ‘(1) the same party has taken two positions; (2) the
positions were taken in judicial or quasi-judicial administrative
proceedings; (3) the party was successful in asserting the first
position (i.e., the tribunal adopted the position or accepted it as
true); (4) the two positions are totally inconsistent; and (5) the
first position was not taken as a result of ignorance, fraud, or
mistake.’” (Aguilar, at pp. 986-987; MW Erectors, Inc. v.
Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36
Cal.4th 412, 422.) Even when all of these prerequisites are met,
the court retains discretion whether to apply the doctrine to
preclude the party from taking inconsistent positions. (Miyahara
v. Wells Fargo Bank, N.A. (2024) 99 Cal.App.5th 687, 697.)
23
The trial court did not err or abuse its discretion in
applying the doctrine of judicial estoppel to preclude Ortiz from
introducing evidence or arguing that he was not driving the Ford
F-150 at the time of the collision. In March 2016, Ortiz appeared
in a judicial proceeding and, with the assistance of counsel, took
the position that he was guilty of the felony of driving under the
influence of alcohol and that he personally caused great bodily
injury to Shanel; he also explicitly admitted that he was “driving
on the date of the incident.” The trial court in that criminal
proceeding accepted Ortiz’s position by accepting his plea, and
then sentenced him to a term of formal probation with no prison
time—even though Ortiz faced a maximum sentence of 11 years
in prison. At the time of his plea and admissions, Ortiz was
assisted by counsel and told the trial court that he was “pleading
freely and voluntarily” and that no one had “made any threats or
promises to [him]” beyond the plea deal. Ortiz then sought to
take the position in this civil case that he was not the driver in
order to escape any liability for the incident in which he had
previously admitted to being the driver. The prerequisites for
applying judicial estoppel were met, and the trial court acted well
with its discretion in electing to apply that doctrine here. And
because all of these above-cited facts are undisputed, the court
did not err in applying the doctrine as a matter of law and
instructing the jury that Ortiz was the driver of the Ford F-150 at
the time of the collision. (Swahn Group, supra, 183 Cal.App.4th
at p. 843.)
Ortiz resists this conclusion with two arguments.
First, he argues that a guilty or no contest plea cannot have
a preclusive effect. For support, he cites Teitelbaum Furs, Inc. v.
Dominion Insurance Co. (1962) 58 Cal.2d 601 and Fawkes v.
24
Reynolds (1922) 190 Cal. 204. To be sure, Teitelbaum and
Fawkes unequivocally hold that the doctrine of collateral estoppel
does not bar a person who pleads guilty or no contest to a crime
from contesting the facts underlying that plea at a subsequent
civil trial. (Teitelbaum, at pp. 604-605; Fawkes, at p. 213; Isidora
M. v. Silvino M. (2015) 239 Cal.App.4th 11, 23, fn. 13; Rusheen v.
Drews (2002) 99 Cal.App.4th 279, 284.) But the doctrines of
collateral estoppel and judicial estoppel are different: Collateral
estoppel conserves judicial resources by preventing re-litigation
of issues already fully litigated, while judicial estoppel maintains
the integrity of the judicial process by preventing a party from
asserting inconsistent positions. (Swahn Group, supra, 183
Cal.App.4th at pp. 841-842.) The doctrine of collateral estoppel
does not apply to pleas because a plea short-circuits a full
litigation of guilt (see Pease v. Pease (1988) 201 Cal.App.3d 29, 34
[“[t]he issue of . . . guilt was not fully litigated in the prior
criminal proceeding” ending in a plea]), but the doctrine of
judicial estoppel can still apply where, as here, the same person
seeks to assert inconsistent factual positions in the plea colloquy
and in a subsequent civil case. What is more, the application of
judicial estoppel in this case is not based merely on the fact of
Ortiz’s plea—but also on his specific, factual admission to being
the driver of the Ford F-150, a fact that Ortiz now seeks to
specifically disavow in this civil case.
Second, Ortiz argues that judicial estoppel should not apply
because he did not “succeed” in the criminal proceeding, as he
pleaded guilty merely to avoid stress upon his family (rather than
because he was, in fact, actually guilty). We reject this
argument. Ortiz succeeded in asserting his position because the
court accepted his plea and gave him the no-time sentence that
25
was part of his plea deal. Ortiz’s reasons for entering the plea do
not negate his success: Ortiz took an irreconcilably inconsistent
position in the criminal proceedings (“I was driving”) to the one
he sought to take in this proceeding (“I was not driving”); his
subjective motivation for taking his prior position does not
undercut the fact of the inconsistency or the harm that such
gameplaying does to judicial integrity. Ortiz relatedly argues
that he merely “capitulated” in the criminal proceedings, but his
plea—for whatever reason—was calculated to obtain a very real
benefit of a no-time sentence when he faced far more stark
outcomes.
B. Refusal to enforce alleged settlement
1. Pertinent facts
a. Insurance policy
At the time of the collision, Infinity Insurance Company
(Infinity) had issued a liability policy with “Ortiz” as its
“insured.”
The Ford F-150 was owned by Ortiz’s stepfather.
b. Settlement negotiations
On August 1, 2014, prior to their filing of this lawsuit,
plaintiffs sent Infinity two letters (one each for Shanel and
Nicole) offering to settle a prospective lawsuit for the policy limits
of Infinity’s policy—namely, $15,000 (for a total settlement of
$30,000). As pertinent here, the offers were contingent upon
Ortiz, as the “insured,” submitting a declaration “under the
penalty of perjury and notarized” stating that (1) “there is no
other insurance coverage available to indemnify or defend
against” plaintiffs’ claims, (2) “[t]he total amount of all of . . .
Ortiz’s assets and holdings is less than $200,000.00,” and (3) at
26
the time of the incident, Ortiz “was not driving in the course and
scope of [] employment with any employer, agency, or company.”
Each offer noted that Ortiz’s “acceptance of this settlement offer
may be conditioned on it being subject to execution of a release
agreement,” and instructed Ortiz to “provide [plaintiffs] with a
release that you require to be signed” within 7 days of a written
acceptance of the offer.
On August 21, 2014, Infinity sent two letters “accept[ing]”
each plaintiffs’ “demand to settle for our [i]nsured’s policy limits.”
Those letters provided that Infinity’s “acceptance . . . [was]
conditioned on it being subject to an execution of a release
agreement of . . . Ortiz and [Ortiz’s stepfather].” Along with the
letters came declarations from Ortiz and the stepfather, although
only Ortiz’s stated that Ortiz’s assets and holdings were less than
$200,000. The releases Infinity sent required plaintiffs to
“forever releases and discharge” Ortiz and his stepfather “from
any and all claims.”
On August 28, 2014, plaintiffs wrote to Infinity and
explained that the requirement that the plaintiffs also release
Ortiz’s stepfather constituted a “counter offer” rather than
acceptance of plaintiffs’ offers; and that plaintiffs would
“proceed[] with a lawsuit” against Ortiz. Plaintiffs and Infinity
then exchanged several letters as to whether the stepfather
might possibly be an “insured” under Ortiz’s policy with Infinity.
Plaintiffs subsequently filed suit against Ortiz.
c. Litigation over enforcement of
“settlement”
Ortiz moved for summary judgment to enforce what he
viewed as the binding settlement between himself (through
27
Infinity) and plaintiffs. In June 2017, the trial court denied
summary judgment.
In October 2016, Ortiz amended his answer to plaintiffs’
claim to add several affirmative defenses—namely, accord and
satisfaction; waiver, estoppel, and unclean hands; and settlement
release.
Plaintiffs moved for summary adjudication of these
affirmative defenses on the ground that there was no binding
settlement as a matter of law. After briefing and a hearing, the
trial court denied the motion.
Plaintiffs sought a writ before this court, and a different
panel of this court issued an alternative writ “tentatively
conclud[ing]” that the “undisputed facts presented . . .
establish[ed]” that there was “no binding settlement agreement”
because Ortiz “did not meet the terms of plaintiffs’ settlement
offer[s] ‘exactly, precisely and unequivocally’ within the time
frame specified by the offer.”
The trial court complied with the alternative writ by
granting summary adjudication on Ortiz’s affirmative defenses,
and plaintiffs proceeded to trial against Ortiz.
2. Analysis
Ortiz argues that the trial court erred in precluding his
affirmative defenses and ruling, as a matter of law, that there
was no settlement between himself and plaintiffs.9 Where, as
here, there are no factual disputes, we independently examine
9 Although this court previously issued an alternative writ
expressing our tentative view that no contract was formed, that
prior pronouncement is not binding on us now. (See Kowis v.
Howard (1992) 3 Cal.4th 888, 894.)
28
whether a contract is formed. (People v. American Surety Co.
(2020) 55 Cal.App.5th 265, 267-268.)
Settlement agreements are contracts, so the “legal
principles [that] apply to contracts generally apply to settlement
[agreements].” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th
781, 789.) Like any contract, a settlement agreement is formed
only when there is a mutual consent—that is, when “the parties
all agree upon the same thing in the same sense.” (Ibid.; Civ.
Code, § 1580.) This is evaluated objectively by looking to “the
parties’ outward manifestations.” (Monster Energy, at p. 789;
Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793,
811; Birdsall v. Helfet (2025) 113 Cal.App.5th 558, 569
(Birdsall).) If the objective evidence establishes that the parties
mutually agreed upon the same thing in the same sense and thus
formed a contract, then subsequent squabbles over how to reduce
that mutual agreement to writing do not vitiate that contract.
(CSAA Ins. Exchange v. Hodroj (2021) 72 Cal.App.5th 272, 276
(CSAA); J.B.B. Investment Partners Ltd. v. Fair (2019) 37
Cal.App.5th 1, 12.) But if the objective evidence establishes that
a party’s offer was met with “a qualified acceptance [that]
amounts to a new proposal or counteroffer,” then the original
offer was rejected and no contract is formed. (Apablasa v. Merritt
& Co. (1959) 176 Cal.App.2d 719, 726-727; Panagotacos v. Bank
of America (1998) 60 Cal.App.4th 851, 855-856; R.W.L.
Enterprises v. Oldcastle, Inc. (2017) 17 Cal.App.5th 1019, 1032;
see Civ. Code, § 1585 [“an acceptance must be absolute and
unqualified . . . . A qualified acceptance is a new proposal.”].)
We independently agree with the trial court that the
objective evidence in this case shows that Ortiz (through his
insurer, Infinity) and plaintiffs did not mutually agree upon the
29
“same thing in the same sense.” Plaintiffs’ initial settlement
offers to Infinity contemplated only a settlement and release for
Ortiz; by the terms of those offers, plaintiffs were willing to
accept the $30,000 policy limits if Ortiz indicated that he had no
other assets worth pursuing (which is why the offers required
him to attest that he had no more than $200,000 in assets) and if
he attested he was not driving within the course and scope of any
employment (which if he was, would have allowed plaintiffs to
pursue a deeper-pocket defendant) . Infinity’s acceptance was
contingent upon a release as to Ortiz and his stepfather. Because
plaintiffs’ offers objectively contemplated settlement and release
only as to Ortiz, Infinity’s response demanding settlement and
release as to an additional individual was a “qualified
acceptance” that added a new term and thus constituted a
rejection of plaintiffs’ offers as well as a counteroffer (that
plaintiffs rejected).
Ortiz makes what boils down to two further arguments.
First, he argues that plaintiffs’ offers contemplated that
Ortiz might request a release and acceded to “a release that
[Infinity] require[d] to be signed”—without any limitation on the
nature of that release. Thus, Ortiz argues, this provision was
effectively a blank check that allowed him to seek a release for
anyone. We reject this argument because it ignores the other
terms of the offers, which are keyed to an assessment of possible
recovery (less than $200,000) versus settlement—and tied them
solely to Ortiz.
Second, Ortiz argues that precedent dictates a ruling in his
favor—and, in particular, CSAA, supra, 72 Cal.App.5th 272 and
Birdsall, supra, 113 Cal.App.5th 558. To be sure, each case deals
with the factual scenario of whether a squabble over the terms of
30
a release vitiates an earlier settlement that contemplated the
execution of a release. But the cases are otherwise
distinguishable. In CSAA, the court held that a release that
sought protection from future claims for bodily injury and
property damage did not vitiate an earlier settlement regarding
bodily injury claims—the addition of the property damage in the
release did not upset the settlement as to bodily injury damage.
(CSAA, at pp. 274-275.) Here, by contrast, Ortiz made his
acceptance contingent upon the release of his stepfather as well
as himself, which precluded a settlement as to Ortiz himself. In
Birdsall, the court held that a release that contained an error
(because it named the plaintiff as a releasor rather than a
releasee) did not vitiate an earlier settlement. (Birdsall, at pp.
569-571.) Here, by contrast, the release Ortiz submitted as part
of his purported acceptance was no mistake; instead, it was a
calculated demand to expand the scope of the release and the
underlying settlement to which it was attached.
31
DISPOSITION
The judgment is affirmed. Nissan is entitled to its costs on
appeal as to plaintiffs’ appeal; plaintiffs are entitled to costs on
appeal as to Ortiz’s appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, P. J.
HOFFSTADT
We concur:
_________________________, J.
BAKER
_________________________, J.
MOOR
32