Zhao v. Mazda Motor of
America
Filed 1/18/13 Zhao v. Mazda Motor of America CA1/2
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
EDWARD ZHAO,
Plaintiff and
Appellant,
v.
MAZDA MOTOR OF AMERICA, INC.,
Defendant and
Respondent.
A133031
(Contra Costa County
Super. Ct. No. C0803160)
This is an appeal from an order granting
a new trial on the ground of juror misconduct.
Appellant Edward Zhao contends that the order must be reversed because
the trial court exceeded its jurisdiction by departing from the strict
statutory procedures governing new trial motions and considering evidence of
juror misconduct that was submitted
too late. Zhao also contends that even
if all of the evidence was properly considered, it is insufficient to support
the new trial order. We reject these contentions
and affirm the order.
II. STATEMENT OF FACTS
On December 16, 2008, Zhao filed a
complaint against Mazda Motor of America, Inc. for violating the Song-Beverly
Consumer Warranty Act (Civ. Code, §§ 1790 et seq.) by selling him a defective
vehicle and by failing to repair the vehicle to conform with Mazda’s written
warranty after a reasonable number of opportunities to do so. A jury trial commenced on January 4, 2011,
before the Honorable Cheryl Mills.
admonished the jury not to conduct any outside research or investigation and to
base its decision solely on the trial
evidence.
The jury began deliberating on
January 10. At some point it requested
guidance from the trial judge because it believed it was a hung jury. The jurors asked if they could review the
entire Song-Beverly Consumer Warranty Act.
The court denied that request.
The jurors also asked whether the law defined what constitutes a reasonable
number of repair attempts. The court
responded that that determination was up to the jury. On January 11, the jury returned a 9-3
verdict in favor of Zhao and fixed his damages at $20,326.62. The trial court dismissed the jury and
ordered counsel to return after a lunch break to address the remaining issues
in the case.
B.
After the lunch break, the trial
court asked the parties whether there were issues to address post-trial. Zhao’s counsel, Brian Bickel, said that there
were not. Mazda’s counsel, Bruce Terlep,
raised several issues including a “new development†which he recounted to the
trial court.
Terlep explained that, after the
jury was dismissed, he walked outside and saw Zhao’s attorneys, Bickel and
co-counsel Brian Cline, talking with a young male juror. Terlep stopped and exchanged a few
pleasantries and then moved on. As he
was leaving, Terlep heard the juror say, “You guys are from San Diego,†and
then tell the attorneys that he had looked at their website. Terlep stopped walking, turned back around
and asked the juror whether he had looked at the Bickel Law firm’s website and,
“[a]fter a stunned bit of silence,†the juror confirmed that he had. Terlep said that he stopped talking with the
juror at that point because he thought a further inquiry would be
inappropriate, but that he subsequently took a look at the Bickel website and
was concerned by its content. Terlep
also advised the court that his client representative, Roger Tarver, had also
heard the juror’s comments. Terlep
concluded that “I think we have a jury misconduct issue, your Honor, and ask
for a new trial on that ground.â€
When asked to respond, attorney
Bickel admitted that he did “think†the juror had said he looked at the
website, but Bickel’s recollection was that the juror said he did not look at
it during the trial. When the trial
court observed that there was only five minutes between the conclusion of the
trial and the conversation, Bickel suggested that the juror could have used his
cell phone to look at the website during that time. Terlep then stated that, as an officer of the
court, he could say that he asked the juror twice whether he had looked at the
website during the trial and the first time there was stunned silence and the
second time the juror answered that he had done so.
The trial court asked each of Zhao’s
attorneys whether the juror had said that he looked at the website during the
trial. Bickel confirmed that the juror
said he looked at the website, that Terlep asked whether he looked at it during
the trial, and that the juror looked stunned.
But Bickel said that he thought the juror said no. Bickel also “thought†that Terlep asked the
question again but said he did not hear the second answer. Cline told the court that the juror had said
he “checked out†the Bickel firm’s website.
According to Cline, Terlep asked whether the juror looked at it during
trial and the juror was stunned by the question. Cline said he was standing further away from
the group than the participants but that he did hear the juror say “no.†Cline said he did not hear Terlep ask the
question a second time.
The trial court asked Terlep whether
he asked the question twice and Terlep was sure that he had; the first time,
the juror did not answer and the second time the juror confirmed that he looked
at the website during the trial. The
trial court stated that counsel were all officers of the court and that it
would accept Terlep’s account of what happened unless Bickel challenged
it. Bickel accepted that the juror said
that he checked out the website but challenged whether he looked at it during
the trial. Bickel also said that, after
Terlep walked away, the juror was upset and concerned he did something
wrong. Bickel, who admitted that he,
too, was “a little bit shaken up by the whole thing,†told the court that he
could not remember what he or the juror said after Terlep walked away.
The court then turned its attention
to Roger Tarver, Mazda’s representative at trial. Noting that Tarver was not an officer of the
court, the court directed that Tarver be sworn in before sharing his
recollection of the incident. Tarver
then recalled that he heard the juror say that he had checked out the Bickel
firm’s website. Terlep turned around and
asked whether he did that during the trial.
The juror looked stunned and then said no. Terlep was incredulous and asked again
whether the juror looked at the website during the trial and the juror admitted
that yes he had.
The trial court observed that the
juror had essentially “self-confessed†to misconduct, and expressed concern
that looking at the website would be prejudicial in light of the fact that the
Bickel firm specializes in lemon-law litigation. After Bickel said he would like to contact
the juror, the court took a break to consult a Rutter Group book. When the hearing resumed, the court advised
the parties that misconduct can be established by affidavits and then stated
“you’re all affidavits, officers of the court, and then I’ve sworn in Mr.
Tarver. So I’ve got my affidavits.†The court then found that the affidavits were
admissible, the evidence established misconduct and the misconduct was
prejudicial. Therefore, the court stated
that it was “inclined on this record to grant the new trial.â€
Bickel objected that he was not
familiar with this area of the law and needed time to conduct research before
he could properly address the matter.
Therefore, the court continued the matter for briefing and set a hearing
for two days later. However, the court
declined to rule on Bickel’s request to release the contact information for the
juror in question, stating that it was not sure whether it would release that
information. The court reasoned that it
already had statements from three officers of the court and the sworn affidavit
which appeared to be enough, and that it did not want to investigate a juror
unless “we need to.†However, the court
invited counsel to brief the question.
C.
At the beginning of the continued
hearing, the trial judge stated for the record that Mazda made an oral motion
for a new trial, that Zhao was entitled to a noticed hearing, and that Mazda’s
memorandum in support of the new trial motion which was filed that day was
“deemed†to be notice. The court then
inquired whether Zhao wanted the court to set a hearing or if he was prepared
to waive irregularities and argue the matter that day.
Bickel stated that Zhao did not
waive irregularities and objected to the form and content of the notice,
arguing that it did not comply with statutory requirements. (See Code Civ. Proc., § 659.) The court reiterated that it deemed the
notice adequate and that it would continue the hearing to give Zhao the
statutory time to respond. The court
also stated that, although Zhao had actual notice of the motion, Mazda should
file a formal notice as well.
The court also acknowledged that it
had erred by failing to consider the rules requiring a noticed motion and the
appropriate time frames and stated “I just want to make it correct because I
don’t want to be overruled on a technicality.â€
The court stated that the matter was serious, that it had not “seen
anything that would contradict granting these motions,†but that it wanted to
give the parties a full opportunity to address the matter so that no mistakes
were made.
The trial court then denied Bickel’s
request for juror contact information, stating that Zhao was not necessarily
entitled to that and that, under the circumstances, it was not necessary. In this regard, the court observed that the
affidavits it already had established that misconduct occurred. The court also expressed amazement that
Bickel could not recall the conversation he had with the juror after Terlep
walked away. In any event, the court
stated that the presumption is that the misconduct was prejudicial and that it
“found†there was prejudice here.
Nevertheless, the court agreed to set a hearing and allow further
briefing in order to comply with procedural requirements. After setting a briefing schedule and a
February 4 hearing date, the court advised the parties that it would continue
the hearing to a later date if Zhao was able to establish a proper basis for
obtaining juror contact information.
D.
On January 18, Zhao filed an
objection to Judge Mills presiding in any further proceeding concerning this
action (Code Civ. Proc., § 170.30), arguing that the trial judge was
biased and prejudiced again him and/or his attorneys.
On January 19, Mazda filed a notice
of intent to move for a new trial and notice of motion for a new trial. That same day, the trial court filed an order
staying this case pending resolution of Zhao’s Code of Civil Procedure section
170.30 challenge.
Despite the stay order, the parties
filed briefs and evidence regarding the pending new trial motion. Mazda filed, among other things, a
declaration by attorney Terlep pursuant to which it submitted a transcript of
the January 11 post-trial hearing and a copy of the content of the Bickel
Firm’s website. Zhao filed an opposition
to the new trial motion in which he made three arguments: (1) Mazda’s evidence constituted inadmissible
hearsay and thus did not constitute a proper affidavit; (2) the refusal to release juror contact information
deprived Zhao of his statutory right to file counter-affidavits (Code Civ.
Proc., § 659a); (3) Mazda’s evidence did not establish that any juror was
biased against the defendant.
On April 6, the Honorable Susan
Dauphine filed an order denying Zhao’s motion to disqualify Judge Mills. On May 13, the trial court filed a judgment
on jury verdict pursuant to which it awarded Zhao $20,326.62. Notice of entry of judgment was served on May
19.
The
noticed hearing on the new trial motion finally commenced on May 20. The trial court’s tentative decision was to
deny Mazda’s motion on the grounds that it failed to offer admissible evidence
of juror misconduct, it had not requested juror contact information, and it was
“content to submit its motion†solely on the basis of hearsay testimony.
At the May 20 hearing, Terlep began
to argue against the tentative ruling but was interrupted by Judge Mills who
asked whether Mazda would like to request juror contact information, stating
that it was clear from the case law that Mazda was entitled to that
information. Mr. Terlep replied that he
would request that information only as an alternative and that his primary
argument was that the new trial motion should be granted on the current record
because (1) the fact that the juror admitted looking at the website was not
hearsay; and (2) the trial court had already ruled that Mazda’s evidence was
admissible and that it proved juror misconduct.
Though acknowledging that Mazda’s
points could be valid, the court opined that it would be important to know what
the juror actually looked at in order to assess prejudice. The court also opined that, although Mazda’s
affidavits would probably not be “completely†disregarded, they were not
“enough to give a new trial.†Finally,
the court found that both parties had been prejudiced by the way the matter had
“unfolded.†Therefore, the court stated
that it would reopen and reconsider the matter and that it would release the
juror information to both parties in order to expedite the process.
Zhao objected to reopening the
matter, arguing that Mazda had waived the right to juror contact information
because of the way it pursued its new trial motion and its decision to stand on
the evidence it already had notwithstanding that it was not even clear the
juror had looked at the Bickel website.
The trial court disagreed, stating:
“I think the Court itself, with the ruling that was done somewhat sua
sponte when this all came up after lunch that day was incorrect as to what are
the standards. So I looked at it
incorrectly.†The trial court also
observed that Mazda was not responsible for the delay caused by the stay order. Finally the court stated that it had “alwaysâ€
been concerned that, right after lunch on the day of the incident, both of
Zhao’s attorneys claimed that they could not remember what they had discussed
with the juror.
Under the circumstances, the court
found that, in order to have a full record, information from the juror was
important. The court set the continued
hearing date for July 8 to ensure that the matter could be decided within 60
days of notice of entry of judgment. The
court also stated that all papers on this and other post-trial motions were to
be filed with the court by June 29.
F.
1.
Declaration
In
anticipation of the continued hearing, Mazda’s
trial counsel, Bruce Terlep summarized his interactions with the individual who
served as Juror number 22 at trial (hereafter Juror 22) in a declaration that
was dated June 15 and filed some time thereafter.
contact with Juror 22 but spoke instead to his father who indicated, among
other things, that Juror 22 had already been contacted by Zhao’s attorneys,
that he was concerned that he was in trouble, and that he did not mean to do
anything wrong by looking at the website during
the trial. Juror 22’s father stated
that his son no longer lived at his home but that he would pass on Terlep’s
message in case he wanted to call him back.
On May 27, Juror 22 called
Terlep. During that conversation, Juror
22 admitted that he had looked at the Bickel firm’s website but claimed that he
did so on his cell phone after the trial ended before he stopped to talk with
Bickel outside the courthouse. However,
several days later, on June 8, Juror 22 sent Terlep an e-mail in which he
admitted that he had in fact looked at the Bickel website during the middle of
the trial from his home computer. Juror
22 stated that he did so innocently, not understanding the severity of his
actions. He also told Terlep that he had
refused to sign a declaration drafted for him by the Bickel law firm. During a follow-up telephone conversation a
few days later, Juror 22 told Terlep that he had received a “lot of pressureâ€
from Bickel attorneys to state that he had not looked at their website during
the trial, but that he decided that he had to do the right thing and tell the
truth. He also told Terlep that he would
sign a declaration that set forth a complete chronology of the facts as he knew
them.
2. The
June 16 Declaration
On June 16, Juror 22 executed a
declaration which Mazda filed in support of the new trial motion (the June 16
declaration). Therein, Juror 22 attested
to the following facts: Approximately
five minutes after the trial ended, Juror 22 had a brief conversation outside
the courthouse with Bickel, Cline and Terlep; Mazda’s trial witness was also
present; after Terlep said goodbye and began to walk away, Juror 22 asked
Zhao’s attorneys if they were from San Diego; Terlep turned back around,
approached Juror 22 and asked how he knew the lawyers were from San Diego;
Juror 22 responded that he had looked at their website; while all the lawyers
were still present, Terlep asked if Juror 22 had looked at the website during
the trial; Juror 22 was taken aback by the question and did not immediately
respond; Terlep asked the question a second time; Juror 22 said that “yes†he
had looked at the website during the trial; Terlep then said he did not want to
talk any more about the matter, thanked the juror for his service and walked
away; Bickel and Cline remained with Juror 22 and engaged him in conversation
as they walked down the street together; the attorneys asked again whether
Juror 22 had looked at the website during the trial; Juror 22 responded that he
had, but that he did not mean to do anything wrong.
In his June 16 declaration, Juror 22
also summarized his post-trial contact
with the attorneys in this case. He
stated that attorneys from the Bickel firm “convinced†him that he had not
looked at the website during the trial and that they advised him to provide a
statement that he had looked at the website on his cell phone after the trial
was over during the five minutes before he talked with the lawyers outside the
court house.
On June 24, Zhao filed a pleading
captioned as the “Declaration†of Juror 22, but
signed instead by attorney Bickel. Through this pleading, Bickel purported to
attach and incorporate a declaration by Juror 22. In fact, the attachment was an
unauthenticated letter from Juror 22, dated June 20 and addressed to Bickel,
Cline and Terlep. That letter contains a
version of the events of January 11 which is substantially consistent with the
June 16 declaration. However, the author
of the letter stated that the Bickel attorneys did not encourage, advise or
pressure Juror 22 to say that he looked at the website after trial, but that he
made that false statement of his own volition, essentially out of fear and a
desire for closure.
G.
Prior to the July 8
hearing, the trial court issued a tentative ruling to grant the motion for new
trial. At the hearing, Zhao opposed the
tentative on the ground that it was unclear how much of the website the juror
had actually seen and he requested additional time and permission to contact
Juror 22 again to explore that question.
The trial court denied that request for two independent reasons. First, the statutory time period for deciding
the motion was about to expire. (See
Code Civ. Proc., § 660.) Second,
and in any event, Juror 22 had become so involved with the attorneys and so
defensive about his actions that any additional statements would not be
credible. Therefore, the court adopted
its tentative ruling and granted a new trial.
That same day, the
court drafted and filed a seven-page order.
The court found that the June 16 declaration was admissible to the
extent Juror 22 described or referred to an overt act or statement, but that
statements about his subjective reasoning were inadmissible and ignored by the
court. The court also found that the
June 24 declaration that Zhao had filed did not meet any of the statutory
requirements of a declaration and was completely inadmissible.
The court then
found that admissible evidence established that Juror 22 looked at the Bickel
Law firm’s website during the middle of the trial from his home computer which
constituted juror misconduct. The
admission that Juror 22 looked at the website during the trial was a violation
of clear instructions not to contact any attorney, do any individual research
and “specifically not to go on the internet.â€
The court noted that it reinforced these instructions during the course
of the trial.
Finally, the court
found that the juror misconduct raised a presumption of prejudice which was not
rebutted by counter-declarations as there were none. Furthermore, the court conducted a review of
the entire record and identified several factors which supported a finding of
prejudice: (1) the Bickel website
contained a “primer on the Lemon Law†which specifically addressed issues
important at this trial; (2) during jury deliberations, the jury asked a
question about what constitutes a reasonable number of repairs, which the court
declined to answer but which was specifically addressed on the Bickel website;
(3) on the special verdict form, the jury found 9 to 3 against Mazda on a question
addressing the reasonable opportunity to repair issue, (4) after trial, Juror
22 lied about what he had done and tried to cover up his actions before
ultimately admitting his misconduct; (5) the content of the Bickel website
contains inherently prejudicial information that was “substantially likely to
prejudice a juror.â€
III. DISCUSSION
“The standard of review on a new
trial motion alleging juror misconduct is abuse of discretion.†(Sarti
v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1213.) “ ‘Upon appellate review of an order granting
a new trial, “all intendments are in favor of the action taken by the lower
court [and] the affidavits in behalf of the prevailing party are deemed not
only to establish the facts directly stated therein, but all facts reasonably
inferred from those stated.†[Citation.]’
[Citation.] ‘ “When an issue is
tried on affidavits . . . and where there is a substantial
conflict in the facts stated, a determination of the controverted facts by the
trial court will not be disturbed.â€
[Citations.]’ [Citation.]†(Grobeson
v. City of Los Angeles (2010) 190 Cal.App.4th 778, 794.)
A.
Zhao’s primary contention on appeal
is that the new trial order must be reversed because the trial court committed
a jurisdictional error by disregarding statutory time requirements for filing
evidence in support of the new trial motion.
The procedure governing new trial
motions is set forth at section 655 et seq. of the Code of Civil Procedure.
ground for a new trial. (§ 657,
subd. (2).) A party moving for a new
trial on this ground must file a notice of his intention to move for a new
trial either (1) before judgment is entered or (2) within 15 days of the
mailing or service of notice of entry of judgment or within 180 days after
judgment is entered, which ever is earlier.
(§ 659.) In addition, the
motion must be “made upon affidavits.â€
(§ 658.)
Affidavits supporting or opposing
the new trial motion must be served and filed within the time frames set forth
in section 659a, which states: “Within
10 days of filing the notice, the moving party shall serve upon all other
parties and file any affidavits intended to be used upon such motion. Such other parties shall have ten days after
such service within which to serve upon the moving party and file
counter-affidavits. The time herein
specified may, for good cause shown by affidavit or by written stipulation of
the parties, be extended by any judge for an additional period of not exceeding
20 days.â€
The time for deciding a new trial is
restricted by section 660 which states, in part: “[T]he power of the court to rule on a motion
for a new trial shall expire 60 days from and after the mailing of notice of
entry of judgment by the clerk of the court pursuant to Section 664.5 or 60
days from and after service on the moving party by any party of written notice
of the entry of the judgment, whichever is earlier, or if such notice has not
theretofore been given, then 60 days after filing of the first notice of
intention to move for a new trial. . . .â€
In this appeal, Zhao contends that
the trial court exceeded its jurisdiction by considering the June declarations
because that evidence was filed after the statutory deadline. Pursuant to section 659a, Mazda was required
to file affidavits in support of it motion within 10 days after the January 19
notice was filed, although the trial court had express authority to extend that
deadline an additional 20 days. However,
Zhao contends, the trial court was absolutely precluded from considering the
June declarations which were filed several months after the 30-day aggregate
statutory time period for filing affidavits in support of the motion expired.
2. Analysis
“The authority of a trial court in
this state to grant a new trial is established and circumscribed by
statute. [Citation.]†(Oakland
Raiders v. National Football League (2007) 41 Cal.4th 624, 633; see also 8
Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court,
§ 19, p. 601.) “ ‘As the
motion for a new trial finds both its source and its limitations in the
statutes [citation], the procedural steps prescribed by law for making and
determining such a motion are mandatory and must be strictly followed
[citations].’ [Citation.]†(Linhart
v. Nelson (1976) 18 Cal.3d 641, 644.)
Applying these principles, courts
have held that the statutory time periods for filing a motion for a new trial
and for deciding that motion constitute jurisdictional limitations on the trial
court’s power to afford this relief.
(See, e.g., Douglas v. Janis (1974)
43 Cal.App.3d 931, 936 [section 659 time requirement for filing notice “is
jurisdictionalâ€]; Mercer v. Perez
(1968) 68 Cal.2d 104, 123 [section 660 time limits for deciding motion are
mandatory and jurisdictional].)
name="_ftnref5" title="">[5]
Zhao maintains that the section 659a
time requirements for filing affidavits in support of a new trial motion are
also jurisdictional and that violating those time requirements constitutes per
se reversible error. To support this
contention, Zhao relies on Erikson v.
Weiner (1996) 48 Cal.App.4th 1663 (Erikson).
Erikson
was an appeal from an order denying a defense motion for a new trial on the
ground of juror misconduct. The
defendant had obtained a 20-day extension of time to file affidavits in support
of his motion and had filed some declarations during the extension period and
others after the time expired. On
appeal, the Erikson court affirmed
the order denying the new trial motion because it found that the only evidence
of misconduct was a juror declaration that was filed after the 20-day extension
granted by the trial court for filing affidavits in support of the motion. (Erickson,
supra, 48 Cal.App.4th at p. 1670.)
In reaching its decision, the Erikson
court also found that the aggregate 30-day time period for filing affidavits in
support of a new trial motion is jurisdictional and cannot be extended by the
trial court. (Id. at p. 1672.)
Preliminarily, we note that the
section 659a time requirements are jurisdictional is dictum. The Erikson
trial court denied a new trial and
the appellate court found that the only evidence of juror misconduct was a
declaration that was filed after the statutory deadline. Since a trial court does not abuse its
discretion by refusing to consider late filed evidence (Peterson v. Peterson (1953) 121 Cal.App.2d 1, 9), the
jurisdictional question to affirm the order in that case. Furthermore, we are not persuaded by the
analysis the Erikson court employed
to reach the conclusion that the section 659a time requirements are
jurisdictional limitations on the court’s authority to grant a new trial
motion.
The Erikson court found
support for its conclusion in the statutory language itself. It was heavily influenced by the mandatory
language in this provision. Indeed, it
appears that the court viewed that mandatory language as compelling the
conclusion that the time limitations are jurisdictional. (Erikson,
supra, 48 Cal.App.4th at pp. 1671-1672.)
However, despite the mandatory language employed throughout the new
trial statutes, all of the procedural requirements governing new trial motions
are not jurisdictional. For example, as
Zhao concedes in his appellate brief, although section 659 mandates that a
notice of intention to move for a new trial must state whether the motion is
made on affidavits or court minutes, failure to comply with this requirement
does not deprive a trial court of jurisdiction to grant the motion. (Nichols
v. Hast (1965) 62 Cal.2d 598, 601.)
In addition to the use of mandatory
language, the Erikson court
emphasized that section 659a “specifies a consequence for exceeding the time
limit for filing of an affidavit in support of a new trial motion.†(48 Cal.App.4th at p. 1672.) According to the court, the prescribed
“remedy†for failing to comply with the 10-day filing deadline is that the
trial court may extend the time to file for an “additional period of not
exceeding 20 days.†(
659a “must be read as mandating only that remedy.†(Ibid.) Furthermore, the court found that because the
30-day aggregate period for filing affidavits in support of a motion may not be
exceeded, “the trial court has no discretion to admit affidavits submitted
thereafter.†(Ibid.)
We interpret this statute
differently. In our view, the 20-day
extension period authorized by section 659a is not a “remedy†for failing to
comply with the 10-day time requirement, but rather an option available to the
trial court to account for unforeseen circumstances. Furthermore, this section does not prescribe
or otherwise address the remedy for exceeding the aggregate 30-day period for
filing initial affidavits in support of the motion. However, section 659a does authorize the
filing of counter-affidavits within an additional 30-day period. Section 659a does not preclude the trial
court from accepting counter-affidavits from a moving party when there is a
valid basis for doing so. Indeed, as
this case demonstrates, such an option may sometimes be the only way to obtain
the evidence necessary to fairly resolve what can be an extremely serious
matter.
The Erikson court also found that the “express†limitations of section
659a are not arbitrary and that they are “hedged by other mandatory time frames
for initiating and resolving a new trial motion.†(Erikson,
supra, 48 Cal.App.4th at p. 1672.)
We agree. However, the
consider that, within that hedge, the trial court has broad discretion. Of course, because those other time frames
are jurisdictional limitations on the trial court’s power, accepting evidence
that has not been filed in compliance with the section 659a time limits may
often constitute an abuse of discretion.
However, it is simply too easy to conceive of situations where denying
the trial court discretion to consider relevant evidence produced during the
jurisdictional time period for ruling on the motion would result in manifest
injustice.
Furthermore, although we have not
found a published decision which addresses the jurisdictional issue in the
present context, courts and commentators have expressed the opinion that the
section 659a time requirements for filing affidavits are not
jurisdictional. (See
1642, 1648 (Fredrics);
(1990) 220 Cal.App.3d 177, 188 (Wiley);
Clemens v. Regents of University of
California (1970) 8 Cal.App.3d 1, 21-22 (Clemens); see also 8 Witkin, Cal. Procedure, supra, Attack on the Judgment in Trial Court, § 65, p. 650.)
Fredrics,
supra, 29 Cal.App.4th 1642, was an
appeal from an order denying a motion for new trial on the ground of juror
court held the trial court did not abuse its discretion by considering
counter-affidavits that were filed after the 10-day deadline expired because
“[t]he 10-day period is not jurisdictional . . . .†(Id.
at p. 1648; see also Boynton v. McKales
(1956) 139 Cal.App.2d 777, 782 [“In contrast to the period for filing the
motion for a new trial the extension of which is expressly prohibited by
section 659, the 10-day period for filing affidavits is not so limited.â€].)
Wiley,
supra, 220 Cal.App.3d 177, was an appeal from an order granting a new trial
motion on the ground of juror misconduct.
Appellant argued the order could not stand because the moving party
failed to file a “ ‘no-knowledge’ †declaration stating that he was
not aware of the improper conduct prior to the verdict. (Id.
at p. 186.) The no-knowledge filing
requirement is a long-standing judicially declared rule which, although described
as a mandatory requirement is subject to many exceptions. (Id.
at p. 187, fn. 4.) The
file a no-knowledge declaration is a procedural defect which is subject to the
invited error rule and can be waived by failure to object if the defect was
curable. The court then concluded that
the defect could have been cured had it been raised at the hearing on the new
trial motion in that case. To reach this
conclusion, the court acknowledged that there are strict statutory requirements
for filing affidavits, but it also observed that “it has been held that the
time limits for filing the affidavits in support of a new trial motion are not
jurisdictional in contrast to the time limit for filing the new trial motion
under Code of Civil Procedure section 659.â€
(Id. at p. 188.)
In Clemens, supra, 8 Cal.App.3d at pages 21-22, the appellate court
vacated an order denying a motion for a new trial and instructed the trial
court to conduct a new hearing on the motion.
The Clemens court recognized
that its remand order created a problem because the “strict time limits for the
filing of affidavits and counteraffidavits†contained in section 659a had “long
past.†(Id. at p. 21.) However,
after observing that these time limits are “not jurisdictional,†(
inherent judicial power incident to the appellate process to permit the filing
of affidavits and counteraffidavits after the remittitur and before rehearing
on the motion.†(Id. at p. 22.)
These cases all support the conclusion that, while the statutory
time limits delineated in section 659a are strict, they are not jurisdictional
limitations on the trial court’s authority to grant a new trial.
For all of these reasons, we hold
that the trial court did not exceed its jurisdiction by considering the June
declarations, which were filed after the statutory time periods set forth in
section 659a, but during the time that the trial court had jurisdiction to rule
on the new trial motion.
B.
Zhao contends there is insufficient
evidence to support the new trial order because (1) the first set of
“affidavits†was incompetent and insubstantial; (2) Mazda was “estopped†from
relying on Juror 22’s June 16 declaration; and (3) even if all the evidence is
considered, Mazda did not suffer prejudice.
1. The
January Affidavits
As reflected in our factual summary,
the trial court made a finding at the January 11 hearing that representations
the attorneys made in open court about their post-verdict interactions with
Juror 22 constituted affidavits supporting the motion for new trial. The court also found that the sworn statement
of Roger Tarver, Mazda’s client representative, was an affidavit. On appeal, Zhao argues that these January
affidavits must be completely disregarded for two reasons.
First, Zhao contends that the
January affidavits are not competent evidence of juror misconduct because they
were presented to the trial court before Mazda made a proper, valid motion for
a new trial. According to Zhao, the oral
motion for new trial that Mazda’s trial counsel made at the January 11 hearing
was an “idle act[] of no legal significance†because the statutory procedure
does not authorize an oral motion.
Therefore, Zhao reasons, evidence of misconduct that was presented in
conjunction with that invalid motion was also of no legal significance. To support this theory, Zhao relies on
section 659 and Maple v. Cincinnati, Inc.
(1985) 163 Cal.App.3d 387, 392 (
Zhao posits that, because “section
659 calls for the filing of a written notice of intent to file a motion,†oral
motions for new trial are invalid. This
argument is a non-sequitur. Section 659
does not expressly nor implicitly prohibit an oral motion for new trial
supported by a proper written notice.
Here, the record shows that Mazda did file a written notice of its
intent to move for a new trial on January 19, and there is no dispute on appeal
that the January 19 notice satisfied the jurisdictional requirements of section
659.
Furthermore, Maple, supra,
163 Cal.App.3d 387, is inapposite. In
that case, the moving party filed two notices
of his motion for a new trial, which the trial court ultimately granted. On appeal, the Maple court found that the first notice was timely and proper and,
therefore, the second notice was “clearly [an] idle act[] of no legal
significance.†(Id. at. pp. 391-392.) The
the legal significance of an oral motion for new trial which is followed up and
supported by a notice that satisfies the requirements of section 659.
Zhao does not identify any legal
authority which precludes a party from making an oral motion for new trial and
then subsequently filing the written notice required by section 659. Nor does he support his assumption that
evidence of juror misconduct may only be presented to the court after the
section 659 notice is filed. Finally,
and in any event, both Zhao and Mazda attached transcripts of the January 11
hearing to declarations that were filed after Mazda filed its January 19
notice.
Which brings us to Zhao’s second
theory; he contends that the witness statements that were made at the January
11 hearing are not “affidavits†in any form.
Specifically, Zhao argues that the statements made by attorneys were not
affidavits because the attorneys did not testify under oath. Furthermore, although Roger Tarver did make a
sworn statement, Zhao complains that he was denied notice and the opportunity
to cross-examine this witness.
Zhao did not raise these issues at
the January 11 hearing when the evidence was presented. Nor did he object to the court’s finding at
that hearing that the statements by the attorneys and Mr. Tarver constituted
affidavits. Therefore, Zhao waived his objections
to this form of proof. (
780, 793 [defendant waived objections to the form of proof of juror misconduct
by failing to object in the trial court].)
Furthermore, Zhao fails to substantiate his theories as to why the
statements by the attorneys and Roger Tarver cannot be construed as
affidavits.
Although Zhao complains that the
attorneys were not expressly sworn, he does not dispute that the trial court
solicited statements from them in their capacity as officers of the court. Because attorneys are officers of the court,
“ ‘ “when they address the judge solemnly upon a matter before the
court, their declarations are virtually made under oath.†’ †(Aceves
v. Superior Court (1996) 51 Cal.App.4th 584, 594; see also
60, 66 [even when not sworn as a witness, an attorney is “held to the same high
standards of honesty and candor in his statements to the court.â€]; Bus &
Prof. Code, § 6068, subd. (d) [“It is the duty of an attorney . . .
never to seek to mislead the judge or any judicial officer by an artifice or
false statement of fact or law.â€].) As
for Roger Tarver’s declaration, Zhao’s idea that he had a right to cross-examine
that witness is inconsistent with settled law.
Since the statutory procedure requires that a motion for new trial on
the ground of misconduct be made upon affidavits, parties may not call or
cross-examine witnesses. (
Alternatively, Zhao contends that
the January affidavits are inadmissible hearsay because they were relevant only
to prove the truth of Juror 22’s out of court statements that he looked at the
website during the trial. (Citing Evid.
Code, § 1200.)
Relevant evidence of statements made
by a juror is not excluded by the hearsay rule when it is offered to establish
the verbal act of making the statements and not to prove the truth of what was
said or the effect of the statements on the jurors’ mental processes in
arriving at a verdict. (
Cal.App.3d 983, 989-990.) Thus, for
example, in Grobeson v. City of Los
Angeles, supra, 190 Cal.App.4th
at pages 792-793, the court found that an attorney declaration recounting a
juror’s statement that she had prejudged the case was not inadmissible
hearsay. The court invoked the rule
that, “ ‘[u]nder the Evidence Code, no hearsay problem is involved if the
declarant’s statements are not being used to prove the truth of their contents
but are being used as circumstantial evidence of the declarant's mental
state.’ [Citation.]â€
Applying these rules here, we find
that the January affidavits are not inadmissible hearsay because observations
by the attorneys who participated in the January 11 incident constitute
non-hearsay evidence of juror misconduct.
Putting aside the truth of Juror 22’s admissions, this juror approached
plaintiff’s counsel within five minutes after the verdict was entered and told
them that, contrary to express jury instructions, he checked out their website
during the trial. When the defendant’s
attorney questioned Juror 22 about what he had done, the juror was embarrassed
and reluctant to answer. Finally, after
Mazda’s attorney left, Juror 22 had a private conversation with Zhao’s
attorneys during which he appeared upset and afraid that he had done something
wrong. Indeed, attorney Bickel was so
shaken by his exchange with Juror 22 that, only an hour later, he told the
trial judge that, as an officer of the court, he could not remember what the
two had said to each other.
These and other first-hand
observations about the post-verdict encounter with Juror 22 constituted
circumstantial evidence of Juror 22’s state of mind and of his bias against
Mazda. In other words, the fact that Juror
22 made the statements that were recounted in the January affidavits and the
circumstances under which those statements were made constitutes relevant
non-hearsay evidence.
Zhao contends that this court should
defer to the trial court on this particular issue and, according to Zhao, the
trial court made a finding at the May 20 hearing that the January declarations
were inadmissible hearsay. As our
factual summary reflects, we strongly disagree with Zhao’s interpretation of
May 20 hearing. Suffice to say, the only
time that the trial court characterized the January affidavits as hearsay was
in a tentative ruling that was not adopted
as the court’s actual ruling.
22’s Declaration
Zhao contends that, even if the
trial court did not exceed its jurisdiction, it abused its discretion by
considering Juror 22’s declaration. To
support this claim, Zhao invokes the doctrine of judicial estoppel, arguing
that Mazda should not be allowed to benefit from the juror contact information
because it consistently objected to disclosing that information until it became
clear that his motion would fail without it.
“ ‘ “Judicial estoppel
precludes a party from gaining an advantage by taking one position, and then
seeking a second advantage by taking an incompatible position. [Citations.]
The doctrine’s dual goals are to maintain the integrity of the judicial
system and to protect parties from opponents’ unfair strategies. [Citation.]
Application of the doctrine is discretionary. †’ [Citation.]
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.’ [Citations.]†(Aguilar
v. Lerner (2004) 32 Cal.4th 974, 986-987.
In the present case, Zhao did not
invoke this doctrine in the trial court and, even if he had, there was no basis
for applying it against Mazda. Mazda did
not take inconsistent positions with respect to the juror contact
information. Rather, it has always
maintained that the January affidavits constituted sufficient evidence of
misconduct which made it unnecessary to contact the jurors. Furthermore, contrary to Zhao’s argumentative
and self-serving summary of the lower court proceedings, the trial court did
not accept Mazda’s position on this issue and Mazda never gained any advantage
by taking it.
3. Sufficiency
of the Evidence
Finally, Zhao contends that, even if
all of the evidence is considered, “there was still an inadequate showing for a
new trial†because there is no evidence that Mazda suffered any prejudice as a
result of the juror misconduct.
The January and June affidavits,
whether considered separately or together, constitute substantial evidence that
Juror 22 committed misconduct by
violating the court’s instructions and looking at the Bickel firm’s internet
website during the trial. That evidence
of misconduct gives rise to a presumption of prejudice. This presumption can be rebutted by (1) an
“affirmative evidentiary showing that prejudice does not exist†or (2) an
“examination of the entire record to determine whether there is a reasonable
probability of actual harm to the complaining party resulting from the
misconduct.†(Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416-417.)
In the present
case, Zhao did not make an affirmative showing that prejudice does not exist;
he did not present any competent evidence addressing the prejudice
question. Nevertheless, on appeal, Zhao
contends that there is no reasonable probability that Mazda was actually harmed
by the misconduct because, in Zhao’s view, the Bickel firm’s website was
relatively innocuous. We are not
persuaded by this self-serving and conclusory argument.
Furthermore, the
trial court conducted a review of the entire record from which it gleaned
several circumstances supporting the conclusion that Mazda suffered
prejudice. For example, the court found
that the Bickel website contains a “primer on the Lemon Law†and that it
contains inherently prejudicial information which is “substantially likely to
prejudice a juror.†The court also found
that the website specifically addressed issues important at this trial,
including the question of what constitutes a reasonable opportunity to repair. This precise issue was the subject of a question
posed by the jury during deliberations which the trial court declined to
answer. And, the jury subsequently found
9 to 3 against Mazda on this issue, concluding that it did have a reasonable
opportunity to repair in this case.
Finally, the trial court also pointed out that Juror 22 lied about the
fact that he looked at the website during the trial and that he tried to cover
up his actions before ultimately admitting his misconduct.
The trial court’s
detailed findings, which Zhao literally ignores on appeal, are more than
sufficient to answer Zhao’s unsupported contention that the juror misconduct
was not prejudicial.
IV. DISPOSITION
The order granting Mazda a new trial
is affirmed.
_________________________
Haerle,
Acting P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
name="_ftn1" title=""> [1] The rules governing this appeal require that
appellant provide us with a “summary of the significant facts limited to
matters in the record.†(Cal. Rules of
Court, rule 8.204(a)(2)(C).) Zhao
violates the spirit if not the letter of this rule by alleging a reversible
procedural error but presenting an extremely argumentative summary of the
procedural history of this case.
of Facts are to the 2011 calendar year unless otherwise indicated.
