Filed 8/31/18 Tinoco v. Garcia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

VIRGINIA TINOCO et al.,

Plaintiffs and Respondents,

v.

EDUARDO GARCIA et al.,

Defendants and Appellants.

Consolidated Cases Nos.

F071883 & F072280

(Super. Ct. No. CV266667)

VIRGINIA TINOCO et al.,

Plaintiffs and Appellants,

v.

EDUARDO GARCIA et al.,

Defendants and Respondents.

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.

Horvitz & Levy, Jason R. Litt, Bradley S. Pauley, and Mark A. Kressel; Robinson & Kellar and Michael C. Kellar for Defendants, Appellants and Respondents.

Rodriguez & Associates and Daniel Rodriguez; Turek Law and Kenneth C. Turek; Esner, Chang & Boyer, Joseph S. Persoff, Stuart B. Esner, and Andrew N. Chang for Plaintiffs, Respondents and Appellants.

-ooOoo-

The original judgment in this wrongful death action was reversed and remanded for a new trial on damages only. After a verdict in the second trial was entered, defendants moved for new trial on the grounds of juror misconduct and excessive damages. The trial court entered a conditional new trial order, granting defendants a new trial unless plaintiffs agreed to a reduction in the damage award. Plaintiffs accepted the remittitur and judgment was entered accordingly. Defendants appeal from the judgment and the conditional portion of the new trial order, seeking retrial of the issue of damages. Plaintiffs appeal from the order granting a conditional new trial and seek reinstatement of the jury’s damage award. We reverse and remand for a partial redetermination of the new trial motion.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs sued defendants for the wrongful death of their decedent, Javier Tinoco. In the first trial, the jury returned a verdict in favor of plaintiffs for approximately $670,000, but indicated it was awarding damages only to the decedent’s wife and two minor daughters. It awarded no noneconomic damages (the only damages they sought) to the decedent’s two adult daughters. Plaintiffs appealed the judgment, and we reversed and remanded for a retrial of the issue of damages only.

On retrial, all plaintiffs sought only noneconomic damages. The trial court granted plaintiffs’ motion in limine to exclude all evidence and all discussion and argument concerning economic damages, on the ground it was irrelevant and unnecessary. The jury awarded plaintiffs $9,450,000. When the jury was polled, the result was 9 to 3 in favor of the verdict. The trial court entered judgment for plaintiffs for $4,725,000, based on the verdict in the first trial, which found decedent to be 50 percent responsible for his own death. Plaintiffs stipulated to an apportionment of the judgment amount among them.

Defendants moved for a new trial, asserting jury misconduct, error in excluding argument about plaintiffs not seeking economic damages, and excessive damages. Defendants submitted the declarations of five jurors; some indicated jurors agreed to add 30 percent to the damages awarded to compensate plaintiffs’ counsel, and some stated jurors discussed including enough money in the award to send some of the plaintiffs to college. Plaintiffs filed an untimely opposition, accompanied by the declaration of another juror, who admitted the jury briefly discussed attorney fees, but denied there was any agreement to include them in the award. The trial court conditionally granted the motion for new trial “on the ground of excessive damages as a result of juror misconduct,” based on the addition of attorney fees to the award. The order indicated the new trial would be denied if plaintiffs agreed to a $2,180,770 reduction of the total award, which would reduce the net award to $3,634,615. Plaintiffs agreed to the remittitur and an amended judgment was entered.

Defendants appeal from the final judgment and the order granting only a conditional new trial. Plaintiffs appeal from the order granting a conditional new trial and the adverse portions of the amended judgment. The appeals have been consolidated.

DISCUSSION

I. New Trial

Code of Civil Procedure section 657 sets out the grounds on which a motion for new trial may be made and granted. They include misconduct of the jury and excessive damages. (Ibid.) The trial court granted defendants’ motion for new trial “on the ground of excessive damages as a result of juror misconduct, to wit, an[] award of attorneys’ fees.”

“ ‘[T]he granting of a motion for a new trial rests so completely within the discretion of the trial judge that an appellate court will not interfere with his action unless a manifest and unmistakable abuse of discretion clearly appears.’ ” (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 109 (Weathers).) “[A]n order granting a new trial under section 657 ‘must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court’s] theory.’ ” (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.)

“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.’ ” (Weathers, supra, 5 Cal.3d at p. 106.) It is the trial court that considers the declarations and counterdeclarations, assesses credibility, and determines the facts. (Fredrics v. Paige (1994) 29 Cal.App.4th 1642, 1647.) “ ‘[W]here there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed.’ ” (Weathers, at p. 108.)

II. Juror Misconduct

Defendants’ motion for new trial asserted the jury committed misconduct by (1) adding 30 percent to the damage award for attorney fees and (2) including an unspecified amount for decedent’s daughters’ college education. “Generally, it is clear, attorneys’ fees are not recoverable in personal injury or wrongful death actions [citations]. An express agreement by the jurors to include such fees in their verdict, or extensive discussion evidencing an implied agreement to that effect, constitutes misconduct requiring reversal.” (Krouse v. Graham (1977) 19 Cal.3d 59, 81 (Krouse).) Likewise, when plaintiffs have waived any right to recover economic damages in a wrongful death action, and the jury has been instructed only on noneconomic damages, an express or implied agreement by the jury to include in the award other items of economic damages, such as college expenses, contrary to the instructions, would constitute misconduct.

The trial court conditionally granted defendants’ motion on the ground the verdict was excessive because of the improper addition of an award of attorney fees. It implicitly denied the motion on the second ground—inclusion of damages for college costs—after concluding the jurors’ declarations concerning the inclusion of an award of college costs were inadmissible.

Plaintiffs’ cross-appeal challenges the trial court’s order granting defendants’ new trial motion. Plaintiffs contend the juror declarations submitted by defendants on both issues constituted inadmissible evidence and did not establish juror misconduct. They ask this court to reverse the order granting the new trial motion and to reinstate the original jury verdict.

Defendants assert the declarations were admissible to establish inclusion of both attorney fees and money for college in the verdict amount. They contend they are entitled to an unconditional new trial on both grounds asserted.

“The trial court must undertake a three-step process to evaluate a motion for new trial based on juror misconduct.” (Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345 (Barboni).) First, the trial court determines whether the declarations supporting the motion are admissible. (Ibid.) Second, if they are admissible, the trial court must determine whether the evidence establishes misconduct. Third, if misconduct has been established, the trial court must determine whether it was prejudicial. (Ibid.)

III. Inclusion of Attorney Fees in Award of Damages

A. Admissibility of Juror Declarations

The general rule is that jurors cannot impeach their verdicts. (People v. Hutchinson (1969) 71 Cal.2d 342, 346.) The Evidence Code, however, permits certain facts to be proved to impeach the verdict. (Hutchinson, at p. 349.) Evidence Code section 1150 provides:

“Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (§ 1150, subd. (a).)

Section 1150 “properly distinguishes between ‘proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved.’ ” (Krouse, supra, 19 Cal.3d at p. 80.) “ ‘The only improper influences that may be proved under section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.’ ” (Ibid.)

Plaintiffs challenge the trial court’s reliance on the juror declarations that defendants presented in support of their motion for new trial. Plaintiffs contend the statements in the juror declarations reflected the jurors’ subjective mental processes and were therefore inadmissible. Further, they contend the statements were inadmissible as hearsay.

“A trial court’s ruling on the admissibility of evidence is generally reviewed for abuse of discretion.” (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1476.) This rule applies to the trial court’s decision to admit juror declarations on the issue of jury misconduct. (Barboni, supra, 210 Cal.App.4th at p. 345.) “The court’s ‘ “discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered.” ’ ” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332.)

In Krouse, the defendant presented four juror declarations in support of his motion for new trial, to show the jurors increased the verdict by the amount they estimated the plaintiffs would pay in legal fees. (Krouse, supra, 19 Cal.3d at p. 79.) Each of the identical declarations stated “that ‘several jurors commented’ on their belief that plaintiffs’ counsel would be paid one-third of the total award. The declarations further recite[d] that the jury ‘considered’ this belief in its awards to the Krouse plaintiffs, and that the award to Mladinov [another plaintiff] was ‘determined’ by adding $30,000 for legal fees to the $60,000 the jury estimated Mladinov would require to hire a helper for 10 years.” (Id. at p. 80.) The trial court excluded the declarations, finding them inadmissible, but the reviewing court disagreed. (Ibid.)

The Krouse court noted that, under section 1150, proof of overt acts was admissible, but proof of the subjective reasoning processes of the jurors was not. (Krouse, supra, 19 Cal.3d at p. 80.) “An express agreement by the jurors to include [attorney] fees in their verdict, or extensive discussion evidencing an implied agreement to that effect, constitutes misconduct requiring reversal.” (Id. at p. 81.) The declarations submitted were inconclusive, because they could reflect such an agreement, or merely the consideration and determination of the matter, which would relate only to the mental processes of the jurors. (Ibid.) The declarations concurred, however, in asserting the verdict in favor of Mladinov was inflated to compensate for attorney fees. (Ibid.) The court concluded “the declarations, taken together, raise an issue of sufficient moment that, in fairness, the declarations should have been admitted and considered by the court in its ruling upon defendant’s motion for new trial.” (Id. at pp. 81–82.) The court reversed the judgment in favor of the Krause plaintiffs on other grounds, but, as to Mladinov, it remanded the matter, so the trial court could admit the declarations and weigh them, along with other relevant matter, in reconsidering the motion for new trial. (Id. at pp. 82, 83.)

In Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728 (Moore), the defendant sought reversal of the judgment in favor of the plaintiff on the ground of jury misconduct. (Id. at p. 733.) The defendant contended the jury improperly considered the amount of attorney fees and taxes the plaintiff would be required to pay out of any award of damages. One of the juror declarations he submitted in support stated that a juror raised the issue of attorney fees and, taking into account the attorney’s probable percentage of the recovery and taxes, suggested the award should be about $1 million; another juror stated 40 percent of the award would probably go to the attorney. (Id. at p. 740.)

The court concluded the declarations were properly admitted because, “in all essential respects,” they complied with the requirements of section 1150 that they present evidence of overt acts, open to sight, hearing and other senses. (Moore, supra, 178 Cal.App.3d at p. 740, fn. 8.) The declarations did not establish misconduct, however, because they did not state that an express agreement was made to include attorney fees in the verdict, and the discussion related “could hardly be characterized as extensive.” (Id. at pp. 740–741, fn. omitted.)

In People v. Elkins (1981) 123 Cal.App.3d 632, the defendant filed a motion for new trial on the ground of jury misconduct, supported by the declarations of two jurors. (Id. at p. 636.) The declarations asserted that a third juror had stated and repeated that the trial court had given a particular instruction, which was a misstatement of the instructions given. (Ibid.) The trial court admitted portions of the declarations, but then expressed its belief they were entirely subjective and inadmissible. The reviewing court concluded the third juror’s statements reflected his subjective mental processes and the statements were therefore inadmissible. (Id. at p. 637.) A juror’s misunderstanding of the trial court’s instructions is part of the reasoning process by which the jury reaches its decision. (Ibid.) The declarations “merely show[ed] some confusion among the jury; there [was] no indication of any open discussion or agreement among the jurors evidencing a deliberate refusal to follow the court’s instructions.” (Id. at p. 638.) Additionally, although the third juror made statements heard by others, “[t]he subjective quality of one juror’s reasoning is not purged by the fact that another juror heard and remembers the verbalization of that reasoning.” (Ibid.)

In Ford v. Bennacka (1990) 226 Cal.App.3d 330, the defendant moved for a new trial on the ground of jury misconduct. It presented the declarations of five jurors, “essentially asserting the jury confused the concepts of comparative negligence and preponderance of the evidence.” (Id. at p. 332, fn. omitted.) The appellate court agreed with the trial court that the declarations were not admissible. “The declarations do not describe overt acts, statements, or conduct showing the jury intentionally agreed to disregard applicable law and apply inapplicable law. [Citation.] Instead, the declarations at most suggest ‘deliberative error’ in the jury’s collective mental process—confusion, misunderstanding, and misinterpretation of the law. On this record the court correctly declined to admit the proffered juror declarations to impeach the verdict.” (Id. at p. 336.)

In English v. Lin (1994) 26 Cal.App.4th 1358 (English), a personal injury action, the defendant’s motion for new trial relied on a juror declaration regarding the jury’s discussion of lost earnings. The plaintiff contended his injuries prevented him from attending college on a football scholarship and becoming a commercial artist. The juror declaration indicated that, in discussing lost earnings, juror Foster stated he had a brother-in-law who was a commercial artist, and mentioned the salary that relative earned. Further, “ ‘many of the jurors concluded that but for the subject accident, plaintiff would have secured a job similar to that of Mr. Foster’s relative. . . . The verdict amount included money for loss of earnings and earning capacity based upon the figures presented by Mr. Foster.’ ” (Id. at p. 1363.) The court concluded that “[a]lthough the remarks of Mr. Foster and the discussion of issues by the jury can be characterized as overt acts,” what the jurors “ ‘concluded’ ” reflected their mental processes and would be inadmissible. (Id. at p. 1366.) Further, there were no overt acts supporting the assertion that the jurors concluded, but for the accident, the plaintiff would have secured a job similar to that of Foster’s relative or the assertion that the verdict rendered included amounts based on Foster’s figures. (Ibid.) These assertions also addressed the jury’s subjective collective mental process, purporting to show how the verdict was reached, and so were inadmissible. (Id. at p. 1367.)

Plaintiffs challenge the admissibility of the following portions of the five juror declarations submitted by defendants.

Simmons Declaration: “During the deliberations, the nine jurors who supported the damages amount discussed and agreed that they should include a 30 percent attorneys’ fee in the damages award. They discussed the dollar amount they felt was appropriate to compensate the plaintiffs, and then agreed to tack on an additional 30 percent for attorneys’ fees to reach the final damages amount of $9,450,000.”

Jackson Declaration: “But some of the jurors discussed the need to increase the damages amount because the plaintiffs’ lawyers would have to be paid fees equal to about 30 percent of the damages award. Those jurors talked about how the total damages award should be increased by about $2 million to $3 million to account for those fees. They talked about how those attorneys’ fees would be included in the total damages award of $9,450,000, and they discussed how the plaintiffs would receive about $7 million after the lawyers took their fees.”

Anderson Declaration: “As the jurors’ [sic] discussed in the deliberations, the final figure of $9,450,000 was based on a certain amount per year for 38 years, plus attorneys’ fees of 30 percent. It was discussed that 30 percent seemed like a fair percentage, even though some attorneys might charge 33 percent. The jurors talked about how, by including attorneys’ fees in the damages award, the plaintiffs would be sure to get the amount of damages the jury intended to award.”

Subia Declaration: “During the deliberations about the amount of damages to award, a few of the jurors said they had dealt with lawyers before and said that lawyers usually charge a fee of about 30 percent. The jurors then discussed and agreed that we should include a 30 percent attorneys’ fee in the damages award. The jurors were all in agreement that 30 percent was the appropriate fee for the plaintiffs’ lawyers.”

Montgomery Declaration: “Some jurors then discussed the need to increase the damages amount to take account of the fact that the plaintiffs’ lawyers would have to be paid attorneys’ fees equal to about 30 percent of the judgment. So, for that reason, the jurors discussed and agreed that the total damages award should be increased to $9,450,000.”

Plaintiffs assert all of the declarations relate to the jurors’ subjective reasoning process, rather than overt acts, open to sight, hearing, or other senses. They argue “[a]lthough some of the declarations referred to what the jurors ‘discussed’ and ‘agreed,’ the essence of the declarations described the jury’s ‘subjective collective mental process purporting to show how the verdict was reached.’ ” We disagree. We conclude the trial court did not abuse its discretion by implicitly admitting and considering the declarations, to the extent they reflect the jury’s discussion of, and agreement to, include in the damages award an amount for plaintiffs’ anticipated attorney fees. Discussion and agreement are overt acts, open to the sight and hearing of other jurors. As the cases indicate, juror “remarks” and “discussions” (English, supra, 26 Cal.App.4th at p. 1366), juror statements (Moore, supra, 178 Cal.App.3d at p. 740), and “discussion and agreement” (Krouse, supra, 19 Cal.3d at pp. 80–81) constitute overt acts within section 1150. Evidence of those overt acts may be admitted to prove an express or implied agreement by the jurors to include attorney fees in their verdict.

We also reject plaintiffs’ argument that the statements in the declarations constituted hearsay. “[H]earsay is defined as ‘evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.’ [Citation.] However ‘[there] is a well-established exception or departure from the hearsay rule applying to cases in which the very fact in controversy is whether certain things were said . . . and not . . . whether these things were true or false, and in these cases the words . . . are admissible not as hearsay, but as original evidence.’ ” (Weathers, supra, 5 Cal.3d at p. 109.) The statements in the juror declarations regarding what was said and agreed upon during deliberations were not offered to prove the truth of the statements made. They were offered as evidence of the jury’s actions: that, contrary to the trial court’s instructions, the jurors included an impermissible monetary award in the verdict amount.

The case plaintiffs rely on in support of their assertion that the juror declarations constituted hearsay testimony is inapposite. In Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666, the declarations that were found to contain hearsay were declarations of the plaintiff’s attorney’s investigator, relating what jurors told him after the trial concerning what happened during deliberations. (Id. at pp. 1669–1670.) The investigator did not observe the overt acts, statements, or conduct that occurred in the jury room and describe them in his declaration. Rather, he merely repeated statements made to him by two jurors, as proof of the matters stated by the jurors. (Ibid.) Thus, the investigator’s declarations about what the jurors told him was said by others, unlike juror declarations containing their own observations of the deliberations, constituted inadmissible hearsay. (Id. at pp. 1670–1671.)

Consequently, we conclude the trial court did not exceed the bounds of reason, and therefore did not abuse its discretion, by admitting the juror declarations, to the extent they contained evidence of overt acts, statements or conduct of the jurors during deliberations, rather than evidence of the jurors’ reasoning process in arriving at the verdict.

B. Finding of Misconduct

We next determine whether the evidence presented established juror misconduct. “On appeal, we must accept the trial court’s findings if supported by substantial evidence. [Citation.] ‘ “Substantial evidence” is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value.’ ” (Barboni, supra, 210 Cal.App.4th at p. 349.) When the juror declarations are flatly contradictory and the motion for new trial presents a battle of the declarations, it is the “ ‘trial court that must assess the credibility of affiants or declarants, and the trial court is entitled to believe one over the other.’ ” (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 372.) “ ‘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.’ ” (Weathers, supra, 5 Cal.3d at p. 108.) “[W]e do not second-guess the calls the trial court made regarding credibility.” (Barboni, at p. 349.)

Plaintiffs contend the juror declarations do not establish misconduct. They continue to argue that the declarations reflect only the jurors’ subjective reasoning process and how the jury computed damages. This issue, however, was addressed in the first step of the process: determining whether the declarations contain admissible evidence. Plaintiffs’ argument regarding the finding of misconduct fails to mention or discuss the substantial evidence standard of review and how it applies in this case. To overturn the new trial order, plaintiffs must convince us of the absence of substantial evidence to support that order; a mere conflict in the evidence will not suffice. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 402 (Hasson).)

On appeal, “[i]t is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. . . . We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630–631.) “The fact that there was substantial evidence in the record to support a contrary finding does not compel the conclusion that there was no substantial evidence to support the judgment.” (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.)

Plaintiffs argue the juror declarations do not establish misconduct because they do not all say that all of the jurors agreed to include attorney fees in the award of damages, Montgomery’s “math does not add up,” Simmons’s declaration contains inconsistencies, and the Gorham declaration submitted by plaintiffs contradicts all of those presented by defendants.

By finding juror misconduct, the trial court implicitly rejected the Gorham declaration and gave credence to the declarations submitted by defendants. The Simmons declaration stated that “the nine jurors who supported the damages amount discussed and agreed that they should include a 30 percent attorneys’ fee in the damages award.” Subia declared that “[t]he jurors . . . discussed and agreed that we should include a 30 percent attorneys’ fee in the damages award. The jurors were all in agreement that 30 percent was the appropriate fee for the plaintiffs’ lawyers.” The Montgomery declaration stated that “[s]ome jurors then discussed the need to increase the damages amount to take account of the fact that the plaintiffs’ lawyers would have to be paid attorneys’ fees equal to about 30 percent of the judgment,” and “the jurors discussed and agreed that the total damages award should be increased to $9,450,000.” Anderson’s declaration stated the final damage award included attorneys’ fees of 30 percent, “as the jurors’ [sic] discussed in the deliberations.” The Jackson declaration stated “some of the jurors discussed” increasing the award of damages to cover attorney fees, and the appropriate amount for doing so.

Any ambiguities or inconsistencies in the declarations were for the trial court to consider in weighing the evidence, assessing credibility, and making a determination of the facts. The trier of fact is the exclusive judge of the credibility of witnesses and the weight to be given witness testimony. (Camp v. Ortega (1962) 209 Cal.App.2d 275, 283.) “[T]he testimony of a witness offered in support of a judgment may not be rejected on appeal unless it is physically impossible or inherently improbable and such inherent improbability plainly appears.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204 (Beck Development).) There is nothing physically impossible or inherently improbable about the matters stated in the juror declarations presented by defendants that would justify rejecting them on appeal.

Further, “the testimony of a witness which has been rejected by the trier of fact cannot be credited on appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved.” (Beck Development, supra, 44 Cal.App.4th at p. 1204.) Defendants objected to the Gorham declaration on the ground it was not timely served or filed. The trial court did not expressly rule on that objection. Nothing in the record indicates whether the trial court rejected the Gorham declaration on the merits of its content, or because it was not timely served and filed. Plaintiffs did not address the timeliness of the declaration in their papers, but simply assumed the declaration was properly before the trial court. Even assuming the trial court considered the Gorham declaration on the merits and rejected it, there is nothing in it that would require us to give it credence, despite the trial court’s rejection of it. Consequently, if the trial court rejected the Gorham declaration as untimely filed, then the defendants’ declarations were uncontradicted. If the trial court considered the Gorham declaration on the merits, the new trial motion presented a battle of the declarations; the trial court assessed the credibility of the declarants and we will not disturb its determination of the controverted facts. (Weathers, supra, 5 Cal.3d at p. 108.)

We conclude substantial evidence supported the trial court’s determination that juror misconduct occurred.

C. Prejudice

“ ‘It is well settled that a presumption of prejudice arises from any juror misconduct. . . . However, the presumption may be rebutted by proof that no prejudice actually resulted.’ ” (Hasson, supra, 32 Cal.3d at p. 416.) “[I]t may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct.” (Id. at p. 417.) The latter method of rebutting the presumption, however, applies only on review of an order denying a new trial motion. (Jones v. Sieve (1988) 203 Cal.App.3d 359, 368.) “Some of the factors to be considered when determining whether the presumption is rebutted are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.” (Ibid.) The burden is on the party opposing the new trial to rebut the presumption of prejudice. (Id. at pp. 366, 367; Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678, 680–681, 683.)

Plaintiffs have not presented any argument to rebut the presumption that the juror misconduct was prejudicial. The trial court could reasonably have concluded that, as a result of the juror misconduct, the damages the jury found defendants were liable to pay to plaintiffs were improperly increased by a substantial amount, and that increase was prejudicial to defendants. Plaintiffs have not identified any evidence in the record that rebutted the presumption that prejudice resulted from the juror misconduct.

D. Conclusion

The trial court did not abuse its discretion by admitting the juror declarations and considering them in determining whether the jury engaged in any misconduct. Substantial evidence supports the trial court’s finding that juror misconduct occurred. Plaintiffs did not rebut the presumption of prejudice, by identifying evidence demonstrating that the misconduct was not prejudicial. Consequently, the trial court did not abuse its discretion by granting defendants’ motion for a new trial on the ground that the award of damages was excessive due to jury misconduct.

IV. Permissible Remedy

In their appeal, defendants contend the trial court properly granted their motion for new trial, but improperly made the order conditional on plaintiffs’ rejection of a reduction in the monetary award. Defendants assert a conditional new trial order with a remittitur may be used only when the sole ground for granting the new trial is excessive damages. Because the trial court’s order was also based on juror misconduct, defendants contend the only available remedy was an unconditional new trial order.

“The remittitur is a judicially developed device, codified in Code of Civil Procedure section 662.5, to allow trial judges who disagree with a jury’s determination of damages to order a conditional new trial unless the plaintiff agrees to a reduced damage award.” (Thompson v. Friendly Hills Regional Medical Center (1999) 71 Cal.App.4th 544, 548.) Code of Civil Procedure section 662.5 provides: “In any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion: [¶] . . . [¶] (2) If the ground for granting a new trial is excessive damages, issue a conditional order granting the new trial unless the party in whose favor the verdict has been rendered consents to the reduction of so much thereof as the court in its independent judgment determines from the evidence to be fair and reasonable.” (Code Civ. Proc., § 662.5, subd. (a)(2).) This was a civil action in which the only issue litigated in the second trial was damages. When defendants moved for a new trial, “an order granting a new trial limited to the issue of damages [was] proper.” (Ibid.) Citing Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442 (Schelbauer), however, defendants contend the trial court could not enter a conditional new trial order because excessive damages was not the only ground on which the trial court granted a new trial.

In Schelbauer, a jury verdict was entered in favor of the plaintiff in a personal injury action. (Schelbauer, supra, 35 Cal.3d at p. 448.) The defendant moved for a new trial on the grounds of excessive damages and insufficiency of the evidence to support the verdict’s finding of no contributory negligence. (Ibid.) The trial court conditionally granted the motion; it ordered that the motion would be denied if the plaintiff consented to a 15 percent reduction of the award, to adjust for contributory negligence. (Id. at pp. 448–449.) The plaintiff consented to the remittitur and the defendant appealed from the judgment and the denial of the motion for new trial. (Id. at p. 449.)

The defendant contended Code of Civil Procedure section 662.5 authorized use of a remittitur only when it would be proper for the court to grant a new trial on the issue of damages; because the trial court used the order to correct the insufficiency of the evidence to justify the jury’s apportionment of liability, the defendant contended the trial court abused its discretion. (Schelbauer, supra, 35 Cal.3d at p. 452.) The court reasoned: “Section 662.5 specifically states that the procedural device of remittitur is to be utilized only when a new trial is warranted solely on the grounds of excessive damages. . . . [¶] The statutory requirement that use of remittitur be limited to those cases where jury error is confined to the issue of damages is express and unequivocal.” (Id. at pp. 452–453.) Accordingly, “[a] remittitur may not be used to condition a new trial order if a damage award is excessive only because it reflects an improper apportionment of liability. Accordingly, the trial court’s use of remittitur under these circumstances was an abuse of its discretion.” (Id. at p. 454, fn. omitted.)

Sabella v. Southern Pacific Co. (1969) 70 Cal.2d 311 (Sabella) also addressed the circumstances under which a remittitur could be included in a new trial order. In Sabella, after a verdict in favor of the plaintiff, the defendant moved for a new trial on multiple grounds. (Id. at p. 314.) The trial court entered a conditional new trial order with a remittitur, based on its finding that certain evidence relating to damages was improperly excluded. On appeal, the defendant argued a “prejudicial error in law due to exclusion of relevant evidence, having deprived defendant of a full hearing by the jury on all the evidence, necessarily require[d] a complete new trial.” (Id. at p. 316.) The court found there was no authority supporting the proposition that wrongful exclusion of evidence relating only to the issue of damages compelled the trial court to order a new trial on all issues. (Ibid.) “Patently this is impractical and contrary to the purposes of the remittitur procedure. If, as the trial court impliedly found here, the only defect relates to the measure of damages, and if the appropriate amount can be ascertained from the evidence, remittitur is the proper remedy to cure that defect and avoid the necessity of a new trial.” (Ibid.)

Both Schelbauer and Sabella limited use of the remittitur device to cases in which the only error was in the determination of damages, and the result of the error was an excessive damages award. Schelbauer expressly rejected the use of a new trial order with a remittitur to cure a perceived error in the jury’s liability determination. The jury had found the plaintiff was not contributorily negligent. The trial court attempted to “correct” that determination by reducing the damage award by 15 percent based on its assessment of the plaintiff’s contributory negligence. The Schelbauer court, however, held that Code of Civil Procedure section 662.5 limited the use of the remittitur device to “cases where jury error is confined to the issue of damages.” (Schelbauer, supra, 35 Cal.3d at p. 453.) It could not be used to change the jury’s apportionment of liability.

Plaintiffs cite Tramell v. McDonnell Douglas Corp. (1984) 163 Cal.App.3d 157 (Tramell) as authority supporting the use of a conditional new trial order when the trial court finds that jury misconduct caused an excessive award of damages. In Tramell, the defendants “did not contest and in effect admitted liability.” (Id. at p. 161.) After jury trial, the trial court entered a conditional new trial order, granting a new trial on the ground of excessive damages, unless the plaintiffs accepted a reduction in the award. (Id. at pp. 164–165.) The plaintiffs refused the remittitur and appealed the order granting a new trial. (Id. at p. 161.)

The trial court’s order set out five reasons for finding the damage award was excessive. (Tramell, supra, 163 Cal.App.3d at pp. 165, 167.) One reason was that the jury improperly inflated the verdict to take into account attorney fees and taxes. (Id. at pp. 165–166.) The trial court noted that juror misconduct was “ ‘a reason supporting the ground of excessive damages rather than . . . a ground for new trial which might prevent a remittitur and force a retrial of the case.’ ” (Id. at p. 165.)

The appellate court rejected all of the trial court’s reasons for granting a new trial except that of jury misconduct leading to an excessive damage award. (Tramell, supra, 163 Cal.App.3d at pp. 169–171.) It found sufficient evidence in the juror declarations to support the finding that jury misconduct resulted in an excessive damage award. (Ibid.) “Misconduct by a jury is in itself a ground for granting a new trial. The trial judge, however, chose to include misconduct by jury as a reason for his conclusion that damages were excessive. This is a permissible procedure.” (Id. at p. 171.)

The Tramell court did not address the propriety of the remittitur included in the new trial order, because neither party challenged that portion of the order. It affirmed the order for a new trial, concluding: “The fact that four of the five specified reasons were not supported by the evidence, is not determinative. The fact of juror misconduct, which the trial court found to be true, is sufficient in itself. It is of such a nature that it vitiates the entire trial.” (Tramell, supra, 163 Cal.App.3d at pp. 173–174.) We note that, because the defendants admitted liability in Tramell, “the entire trial” addressed only the issue of the damages caused by the defendant’s wrongdoing. (Ibid.)

The conditional order in Tramell was consistent with the decision in Sabella. According to Sabella, “[i]f . . . the only defect relates to the measure of damages, and if the appropriate amount can be ascertained from the evidence, remittitur is the proper remedy to cure that defect and avoid the necessity of a new trial.” (Sabella, supra, 70 Cal.2d at p. 316.) In Tramell, liability was admitted and the misconduct of the jury—inflating the damage award to take into account attorney fees and taxes—affected only the issue of damages. The trial court, exercising its independent judgment after weighing the evidence, determined that the remittitur amount was the fair and reasonable amount of damages supported by the evidence. (Tramell, supra, 163 Cal.App.3d at p. 164.)

Here, the only issue before the jury in this second trial was damages. Any error in the jury’s decision affected only the damages awarded, not the determination of liability, which was established in the first trial. As in Sabella, “the only defect relates to the measure of damages, and if the appropriate amount can be ascertained from the evidence, remittitur is the proper remedy to cure that defect and avoid the necessity of a new trial.” (Sabella, supra, 70 Cal.2d at p. 316.) The juror misconduct only affected the measure of damages. The trial court implicitly found, based on evidence presented in support of the motion for new trial, that the jury added 30 percent to the award for attorney fees. Accordingly, its new trial motion was conditioned on plaintiffs’ rejection of a remittitur that reduced the award by that 30 percent.

We conclude the trial court did not abuse its discretion by entering a conditional new trial order, that granted defendants’ motion for new trial unless plaintiffs consented to a 30 percent reduction in the award of damages. Such an order was authorized in this case by Code of Civil Procedure section 662.5, which permits the use of a remittitur in lieu of a new trial limited to the issue of damages, when the defect in the trial court proceedings that resulted in an award of excessive damages affected only the award of damages and not any issue of liability.

V. Inclusion of Money for College in Award of Damages

Defendants contend the jurors’ inclusion of an amount for the college education of some of the plaintiffs was an additional instance of juror misconduct that warranted unconditionally granting a new trial. They contend the juror declarations on this issue were admissible and established prejudicial misconduct. The following are the statements in defendants’ juror declarations relating to college expenses.

Simmons Declaration: “When deciding the amount of damages to award, the jurors discussed the trial testimony that Mr. Tinoco had wanted his daughters to go to college. The nine jurors who agreed with the proposed damages amount discussed that some of that money was for the purpose of paying for Mr. Tinoco’s daughters’ future college education.”

Jackson Declaration: “When deciding the amount of damages to award, the other jurors discussed the need to award money so that Mr. Tinoco’s daughters could have an opportunity to go to college. I reminded them that two of the girls have already gone to college.”

Subia Declaration: “When deciding the amount of damages to award, the jurors discussed the fact that two of the plaintiffs—Javier Tinoco’s daughters—were still school-age children who lived with their mother. We discussed that those children most likely would be attending college, so we agreed to include in the amount of damages some money so that the girls can attend college and pursue their dreams even though their father died.”

Montgomery Declaration: “When deciding the amount of damages to award, the other jurors and I talked about the need to include a reasonable amount for Mr. Tinoco’s daughters’ future college education, since there was testimony during trial that the girls wanted to attend college. That figure was not separately identified anywhere, but was simply included in the lump sum of the total damages awarded.”

Anderson Declaration: This declaration made no mention of damages for college.

The trial court concluded these statements did not meet the requirements of section 1150 for admissibility; they related to the jurors’ mental processes and subjective reasoning, rather than overt, objectively ascertainable acts. (Krouse, supra, 19 Cal.3d at p. 80.)

In English, the court concluded that remarks and discussion by jurors constituted overt acts, because they were observable by other jurors. (English, supra, 26 Cal.App.4th at p. 1366.) The remainder of the juror declaration—which contained statements of the declarant about what the jury concluded and what the verdict amount included—reflected the jurors’ mental processes and was unsupported by overt acts. (Id. at p. 1366.) The court noted that “ ‘evidence about a jury’s “subjective collective mental process purporting to show how the verdict was reached” is inadmissible to impeach a jury verdict.’ ” (Id. at p. 1367.) Therefore, the statements “alleging the conclusions of the jury and the components of the damage award” were inadmissible to impeach the jury verdict. (Ibid.)

Similarly, in Cove, Inc. v. Mora (1985) 172 Cal.App.3d 97, the plaintiff sued its landlord for breach of a lease and sought recovery of its lost profits. After an $18,000 verdict in the plaintiff’s favor, the defendants moved for a new trial, supported by five identical juror declarations stating that the jury specifically found that the plaintiff did not prove the defendants proximately caused lost profits, and “[o]ur award of $18,000 is for general emotional upset/pain and suffering.” (Id. at pp. 99–100.) The trial court granted a new trial on damages only, finding the jury improperly awarded compensatory damages on “a nonexistent legal theory.” (Id. at p. 100.) On appeal, the court reversed, concluding that, because the declarations failed to set forth overt acts or statements, open to sight, hearing, or other senses, and subject to corroboration, they did not meet the standards for admissibility under section 1150, and should not have been considered by the trial court. (Cove, Inc., at pp. 100–101, 103.).

Four of the declarations submitted in support of defendants’ motion for new trial stated that some jurors “discussed” or “talked about” needing to include money in the award for college for decedent’s daughters, or decedent’s desire that his daughters attend college. Juror discussions are overt acts or statements that may be proven by juror declarations. Consequently, statements in the declarations concerning juror discussions about awarding damages to cover college expenses were admissible. Subia’s statement that jurors “agreed” to include money for college in the award of damages also reflected an overt act and was admissible. We conclude the trial court abused its discretion by excluding those portions of the declarations.

Montgomery’s statement that the “figure was not separately identified anywhere, but was simply included in the lump sum of the total damages awarded,” however, asserted “the conclusions of the jury and the components of the damage award.” (English, supra, 26 Cal.App.4th at p. 1367.) That statement was properly held inadmissible to impeach the jury verdict.

We conclude we must remand the matter for the trial court to consider the admissible evidence in the declarations and determine whether it affects the outcome of defendants’ motion for new trial. The trial court must determine whether the admissible evidence establishes jury misconduct (i.e., an express or implied agreement to include economic damages in the verdict amount, contrary to the trial court’s instructions) and, if so, whether the misconduct was prejudicial. If it finds prejudicial misconduct, it must determine what remedy is appropriate. If it finds no misconduct or no prejudice, the trial court should re-enter the existing conditional new trial order and the resulting judgment.

VI. Exclusion of Argument Regarding Economic Damages

Prior to trial, plaintiffs filed a motion in limine to exclude “any and all evidence, references to evidence, testimony or argument by Defendants . . . as to any references that Plaintiffs are not seeking economic damages, including claims for pass [sic] and future loss of wages.” Plaintiffs argued that “such evidence” would be irrelevant and unduly prejudicial, and would not assist the jury in assessing the loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support. Plaintiffs cited section 350 (“No evidence is admissible except relevant evidence”) and a case stating the same proposition (People v. Heard (2003) 31 Cal.4th 946, 972–973 [“ ‘Only relevant evidence is admissible’ ”]). Plaintiffs also argued that, if the evidence had any probative value, that value was substantially outweighed by the probability that its admission would necessitate undue consumption of time or create substantial danger of undue prejudice, confusion of the issues, or misleading of the jury (citing § 352).

Defendants opposed the motion, asserting that the fact plaintiffs were not seeking economic damages was relevant to the issue of what damages plaintiffs could recover at trial. Further, defendants argued they should be permitted to refer to that fact and comment on it in closing argument to clarify and help the jury understand what types of damages plaintiffs could recover and the amounts defendants recommended for the award.

Although plaintiffs’ argument was couched in terms of inadmissibility of evidence, what plaintiffs actually sought to exclude was any argument by defendants that plaintiffs were not seeking economic damages and therefore the award of damages by the jury could not include any amount for economic losses, such as decedent’s past or future lost wages or funeral expenses. The arguments in plaintiffs’ motion addressed only the inadmissibility of evidence; plaintiffs failed to include any argument or authority justifying the trial court’s restriction on defendants’ argument regarding the kind or extent of damages the jury could award.

The trial court granted plaintiffs’ motion in limine. It noted the jury would be instructed about noneconomic damages, but would not be instructed about economic damages. It concluded that, “from an evidentiary standpoint, the fact that they are not pursuing economic damages is not relevant other than that they won’t be getting an instruction on economic damages.” The trial court predicted the issue of the difference between economic and noneconomic damages would come up during voir dire, and the jurors would have to commit to following the trial court’s instructions or be challenged for cause. The trial court stated that the ruling applied to both parties; plaintiffs could not use the fact they were not pursuing economic damages to ingratiate themselves with the jury.

Attorneys are given wide latitude during closing argument. (People v. Sandoval (2015) 62 Cal.4th 394, 439.) “ ‘ “The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.” ’ ” (Ibid.) “ ‘ “Only the most persuasive reasons justify handcuffing attorneys in the exercise of their advocacy within the bounds of propriety.” ’ ” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795.)

Defendants’ proposed argument that the jury could not award economic damages, because no evidence supporting such an award was offered or admitted, was not irrelevant. Economic damages, such as loss of financial support and funeral costs, are ordinarily recoverable elements of damages in a wrongful death case. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 806.) Therefore, it would not have been improper, but would have been within an attorney’s wide latitude of argument, for defense counsel to point out in closing that there was no evidence of any such damages, and the jury could not award them. Neither plaintiffs nor the trial court offered any persuasive reason to justify precluding defense counsel from arguing about the type and scope of damages the jury was permitted to award.

In its instructions, the trial court identified the damages sought by plaintiffs as noneconomic damages, and defined the noneconomic damages as the loss of decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral support, training, and guidance. The trial court instructed the jury not to consider plaintiffs’ grief, sorrow, or mental anguish, or decedent’s pain and suffering. Although these excluded items (grief, sorrow, mental anguish, pain and suffering) were not recoverable, and no evidence was presented in support of an award to compensate for them, the trial court did not deem them irrelevant and preclude the parties from mentioning them in argument, but expressly instructed that they could not be included in the award of damages. We see no difference between nonrecoverable damages for grief, sorrow, mental anguish, or pain and suffering, and nonrecoverable economic damages, when plaintiffs have waived any claims for economic damages. In either case, defendants should be permitted to argue that these are not proper items of damage, there was no evidence introduced in support of them, and therefore the jury may not include them in its award. Consequently, we conclude the trial court abused its discretion by precluding defense counsel from arguing that economic damages could not be included in the jury’s award.

“An appellant bears the burden to show not only that the trial court erred, but also that the error was prejudicial in that it resulted in a miscarriage of justice. [Citations.] An error is prejudicial and results in a miscarriage of justice only if the reviewing court concludes, based on its review of the entire record, that it is reasonably probable that the trial court would have reached a result more favorable to the appellant absent the error.” (Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986, 999.) Defendants contend the jury was confused and improperly included awards of economic damages—attorney fees and college expenses—in the verdict amount. They assert the jury would not have been confused, and would not have made the improper awards, if defense counsel had been permitted to explain which categories of damages were permitted and which were not. Thus, the prejudice they claim is the addition to the damage award of improper amounts for economic damages that were not in issue in this case.

To the extent defendants contend the restriction on their argument concerning economic damages resulted in the jury’s addition of attorney fees to the award of damages, that error was remedied by the trial court’s conditional new trial order. Plaintiffs’ acceptance of the remittitur resulted in the elimination of the attorney fee award from the final judgment.

To the extent defendants contend the jury also added some amount to the verdict to cover the college expenses of some of the plaintiffs, we cannot determine the issue of prejudice on the current record. The trial court did not consider the admissible evidence regarding college expenses, and did not determine whether it supported a finding that the jury included some amount for them in the award of damages. Consequently, we must remand the matter to the trial court in order for it to determine, based on the admissible evidence, whether, as a result of confusion caused by the trial court’s restrictions on defendants’ closing argument, the jury improperly included money for college for some of the plaintiffs in the award of damages. If the trial court finds the jury committed prejudicial error by improperly including a sum for college expenses, it must enter an appropriate new trial order, granting the motion either conditionally or unconditionally, depending upon its findings. If it finds the evidence is insufficient to establish that college expenses were included in the verdict, it should re-enter its original conditional new trial order and the judgment thereon.

DISPOSITION

The judgment is reversed. The trial court is directed to redetermine, in accordance with this opinion, the portion of the motion for new trial asserting error based on the alleged addition to the verdict of a sum for college expenses. If, after considering all the admissible evidence, it determines the jury committed prejudicial error by including in the award of damages a sum for college expenses, it is directed to enter a new conditional or unconditional order granting the motion for new trial. If it determines the evidence is insufficient to establish such prejudicial error, it is directed to reenter its existing conditional new trial order and the judgment thereon.

HILL, P.J.

WE CONCUR:

POOCHIGIAN, J.

ELLISON, J. *