Filed 3/24/20 Evans v. County of Nevada CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Nevada)

—-

YVONNE EVANS et al.,

Plaintiffs and Respondents,

v.

COUNTY OF NEVADA,

Defendant and Appellant.

C087658

(Super. Ct. No. CU15-081064)

Plaintiffs William and Yvonne Evans (the Evanses) sued defendant County of Nevada (County) for violations of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900, et seq.). A jury rendered a verdict in the County’s favor. The Evanses moved for a new trial based on juror misconduct. The trial court granted the motion. The County appeals, arguing the trial court erred in finding that a juror injected extrinsic character evidence into deliberations, failed to disclose material facts in voir dire, and refused to deliberate. Finding no error, we will affirm the new trial order.

I. BACKGROUND

The Evanses brought suit against the County, alleging causes of action for workplace retaliation under FEHA. (Gov. Code, § 12940, subd. (h).) The Evanses’ first amended complaint alleges that Yvonne was falsely accused of embezzlement and fired from her position as an accounting assistant with the sheriff’s department in retaliation for reporting sexual harassment by the undersheriff. The first amended complaint further alleges that William was constructively discharged from his position as a lieutenant with the sheriff’s department in retaliation for his opposition to the actions taken against Yvonne.

The matter was tried to a jury over the course of several weeks. During the trial, the jury heard from current and former members of the sheriff’s department, including the sheriff and former undersheriff. Following closing arguments and instructions, the jury rendered nine to three verdicts for the County.

The Evanses moved for a new trial based on juror misconduct. (Code Civ. Proc., § 657, subd. (2). The motion was accompanied by declarations from three minority jurors (Juror Nos. 4, 10, and 11), each of whom averred that one of the majority jurors (Juror No. 8) disclosed, in the course of deliberations, that she was a member of a church whose membership included people employed by or otherwise connected to the sheriff’s department, and they were “all good people.” One juror (Juror No. 10) additionally averred that Juror No. 8 “further stated that her relationship with these church members affiliated with the Sheriff’s Office heavily supported her decision in favor of the County.” Another juror (Juror No. 11), the foreperson, averred that Juror No. 8 “was adamant from the beginning of deliberations that her mind was made up in favor of . . . [the] County.”

The motion was also accompanied by declarations from the Evanses and their trial counsel, each of whom averred that they were not aware of Juror No. 8’s connections to the sheriff’s department before the verdict, and would not have accepted her as a juror had they been so aware. The Evanses’ trial counsel additionally averred that he asked Juror No. 8 in voir dire whether “ ‘you have any problem one way or another with law enforcement,’ ” and she responded “ ‘no.’ ” Yvonne’s declaration also described a post-verdict examination of various Facebook accounts and attached Facebook pages purporting to show that Juror No. 8 was Facebook “friends” with members of the sheriff’s department and/or their family members. None of these people appear to have been called as witnesses in the trial.

The County opposed the motion. The County’s opposition was supported by declarations from several majority jurors who opined that some of the minority jurors (including the foreperson) were biased against the County. The opposition was also supported by a declaration from Juror No. 8. As relevant here, Juror No. 8 acknowledged that she attends church with persons employed by the sheriff’s department, but denied having relationships with any such persons outside of church. Juror No. 8 also acknowledged that she made “a comment . . . to the effect that I believe people who worked for the Sheriff’s Department were good people.” However, Juror No. 8 explained that the comment was made in the context of a discussion of William’s case, in which evidence was apparently introduced that William believed the sheriff’s department was out to get him and was not above planting evidence on him to get him in trouble. According to Juror No. 8: “Those jurors that were against the County from the beginning seemed to buy into this claim, and were making general comments about their impression about the Sheriff’s Department and their belief that people in the department may engage in such acts. This was not tied to any specific facts or circumstances presented in the case. Those people seemed to have a preconceived negative opinion of the Sheriff’s Department and were of the position that people in the department were not good people and would do things such as planting evidence. I responded by giving my general impression that those in law enforcement are good people, and are out to protect us, and that I would be very surprised if something like that would occur.”

Following a hearing, the trial court granted the motion. In a ruling on submitted matter, the trial court overruled most of the County’s objections to the Evanses’ declarations (including the County’s objections to the Facebook pages), and all of the Evanses’ objections to the County’s declarations.

After accurately summarizing the allegations and applicable law, the trial court found that “the totality of the admissible declarations shows that the overt actions of Juror [No. ]8 included presenting character evidence to the other jurors which was extrinsic to the trial testimony. She admitted that she knew Sheriff’s Department employees and Sheriff’s Department spouses who attended the same small church that she attended, and knew them to be ‘all good people.’ She clarified that statement to the jurors during deliberations in that she was referring also to all Sheriff’s Department workers. She also stated that her opinion of the Sheriff’s Department employees was a heavy factor in her decision.”

The trial court observed that Juror No. 8 failed to disclose her connections to the sheriff’s department in voir dire, and other jurors reported that Juror No. 8 “presented an adamant refusal to consider [the Evanses’] argument and a refusal to deliberate.” Accordingly, the trial court concluded the facts established misconduct. The trial court went on to find that the misconduct was prejudicial under the totality of the circumstances, a finding the County does not challenge on appeal. This appeal timely followed.

II. DISCUSSION

A. Applicable Legal Principles and Standard of Review

A new trial may be ordered on various statutory grounds, including juror misconduct. (Code Civ. Proc., § 657, subd. (2).) “ ‘In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. [Citation.] First, it must determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial.’ [Citation.]” (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160 (Whitlock).) Juror misconduct raises a rebuttable presumption of prejudice. (Id. at p. 162; see also Jones v. Sieve (1988) 203 Cal.App.3d 359, 367 [“ ‘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’ ”].)

We review the trial court’s ruling for abuse of discretion. (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 636 (Oakland Raiders); see also Whitlock, supra, 160 Cal.App.4th at p. 159.) “ ‘[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); see Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412 (Lane) [“an order granting a new trial . . . ‘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’ ”].)

“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.) We accept the trial court’s credibility determinations and findings of historical fact if supported by substantial evidence. (Lane, supra, 22 Cal.4th at p. 412.) We indulge all presumptions in favor of the new trial order, and with exceptions inapplicable here, affirm “upon any ground stated in the motion, whether or not specified in the order or specification of reasons.” (§ 657; Oakland Raiders, supra, 41 Cal.4th at p. 636.)

B. Admissibility of Facebook Evidence

We begin with the admissibility of the evidence supporting the motion. (Whitlock, supra, 160 Cal.App.4th at p. 160.) In reviewing a new trial order, we would ordinarily expect to review the admissibility of juror declarations under Evidence Code section 1150. (See, e.g., Whitlock, supra, at p. 160.) Here, however, the County challenges only those portions of Yvonne’s declaration purporting to show that Juror No. 8 was Facebook “friends” with members of the sheriff’s department and/or their family members. According to the County, the Facebook evidence was hearsay, offered to show that Juror No. 8 and members of the sheriff’s department and/or their family members were “genuine ‘friends.’ ” We are not persuaded.

We review the trial court’s rulings as to the admissibility of evidence, including hearsay determinations, for abuse of discretion. (Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 168.) On the record before us, the trial court could reasonably conclude that the Facebook evidence was admissible, not for the hearsay purpose of proving that Juror No. 8 and members of the sheriff’s department were “genuine ‘friends,’ ” but for the non-hearsay purpose of showing they were connected on social media. Put another way, the Facebook evidence could have been admitted, not for the truth of the matter, but merely to show the fact of its existence. (Harvey Barnett, Inc. v. Shidler (2003) 338 F.3d 1125, 1130, fn. 4 [internet data admissible to show that the data existed on the internet].) We perceive no abuse of discretion in the admission of the Facebook evidence for this limited purpose. But even assuming the evidence was improperly admitted, the error, if any, was harmless. As we shall discuss, substantial evidence supports the trial court’s finding of juror misconduct, even excluding the Facebook evidence.

C. Juror Misconduct

We next consider whether the admissible evidence establishes juror misconduct. (Whitlock, supra, 160 Cal.App.4th at p. 160.) As noted, the trial court found that Juror No. 8 engaged in misconduct by: (1) presenting extrinsic character evidence regarding members of the sheriff’s department; (2) failing to disclose her relationships with members of the sheriff’s department in voir dire; and (3) refusing to deliberate. The County challenges each of these findings on various grounds. We consider the County’s arguments below.

1. Extrinsic Character Evidence

The County argues the trial court erred in finding that Juror No. 8 presented extrinsic character evidence regarding members of the sheriff’s department. According to the County, Juror No. 8 merely shared a general opinion, based on her life experience, that members of the sheriff’s department are “good people.” The trial court reasonably found otherwise.

“A juror may commit misconduct by receiving or proffering to other jurors information about the case that was not received in evidence at trial.” (In re Lucas (2004) 33 Cal.4th 682, 696; see also McDonald v. Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, 263 [“Presentation to or reception by a jury of new evidence from sources outside the trial evidence constitutes misconduct”].) “However, a distinction must be drawn between the introduction of new facts and a juror’s reliance on his or her life experience when evaluating evidence.” (People v. Allen and Johnson (2011) 53 Cal.4th 60, 76.) “ ‘Jurors’ views of the evidence . . . are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct. [Citations.]’ ” (Ibid., quoting In re Malone (1996) 12 Cal.4th 935, 963.) “A fine line exists between using one’s background in analyzing the evidence, which is appropriate, even inevitable, and injecting ‘an opinion explicitly based on specialized information obtained from outside sources,’ ” which our Supreme Court has described as juror misconduct. (People v. Steele (2002) 27 Cal.4th 1230, 1266.) We cannot say the trial court abused its discretion in finding that Juror No. 8’s conduct crossed the line.

The minority jurors uniformly averred that Juror No. 8 stated, in the course of deliberations, that she knew members of the sheriff’s department from church, and they were “all good people.” In response, Juror No. 8 asserted that she merely shared a “general impression that those in law enforcement are good people, and are out to protect us, and that [she] would be very surprised” if they were to engage in such practices as planting evidence. The trial court implicitly rejected Juror No. 8’s version of events. In finding that she presented extrinsic character evidence, the trial court impliedly found that Juror No. 8 expressed an opinion about members of the sheriff’s department in particular, rather than law enforcement in general, and her opinion was based on her outside relationships with other members of the department, rather than evidence presented at trial or general impressions derived from life experience. Substantial evidence supports these implied findings.

The minority jurors all averred that Juror No. 8 referred specifically to the sheriff’s department, rather than law enforcement generally, and all recalled that she expressed her opinion around the same time as she disclosed that members of the department were known to her through church. Only Juror No. 8 averred that she merely expressed a general impression of law enforcement, having no particular connection to her relationships with members of the sheriff’s department. The trial court was entitled to believe the minority jurors and disbelieve Juror No. 8. (Weathers, supra, 5 Cal.3d at p. 108 [“ ‘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’ ”]; see also Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 349 [“we do not second-guess the calls the trial court made regarding credibility”].) On the record before us, the trial court could reasonably find that Juror No. 8 effectively vouched for members of the sheriff’s department based on facts not in evidence, and thus crossed the line into misconduct. We will not disturb the trial court’s finding. (Whitlock, supra, 160 Cal.App.4th at p. 159 [“ ‘ “the trial judge is familiar with the evidence, witnesses and proceedings, and is therefore in the best position to determine whether, in view of all the circumstances, justice demands a retrial. Where error or some other ground is established, his discretion in granting a new trial is seldom reversed” ’ ”].)

2. Concealment of Bias

The County challenges the trial court’s finding that Juror No. 8 concealed a bias in favor of the sheriff’s department in voir dire. Specifically, the County argues the evidence fails to support the implied finding that Juror No. 8 harbored a bias in favor of the sheriff’s department from the outset of the case, or concealed any such bias in voir dire. We disagree.

“ ‘The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution.’ ” (Weathers, supra, 5 Cal.3d at p. 110.) Exploring prospective jurors’ impartiality at voir dire protects this right. (In re Hitchings (1993) 6 Cal.4th 97, 110.) A juror who intentionally conceals relevant facts during voir dire “undermines the jury selection process and commits misconduct.” (Id. at p. 111; see People v. Blackwell (1987) 191 Cal.App.3d 925, 929 [“Falsehood, or deliberate concealment or nondisclosure of facts and attitudes deprives both sides of the right to select an unbiased jury and erodes the basic integrity of the jury trial process”].) “An unintentional concealment caused by an honest mistake during voir dire, however, ‘cannot disturb a judgment in the absence of proof that the juror’s wrong or incomplete answer hid the juror’s actual bias.’ ” (In re Manriquez (2018) 5 Cal.5th 785, 797-798.) “ ‘Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court. Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination. [Citations.]’ ” (People v. San Nicolas (2004) 34 Cal.4th 614, 644.)

The County urges us to apply a heightened “demonstrable reality” standard of review to the trial court’s finding of concealed bias. “Under the demonstrable reality standard, a reviewing court’s task is more ‘than simply determining whether any substantial evidence in the record supports the trial court’s decision.’ [Citation.] ‘A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. . . . [¶] The demonstrable reality test entails a more comprehensive and less deferential review. It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion . . . . It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied.’ ” (People v. Armstrong (2016) 1 Cal.5th 432, 450-451.)

We are not convinced that the “demonstrable reality” standard, which applies to a trial court’s decision to discharge a juror (see People v. Cleveland (2001) 25 Cal.4th 466, 484; Pen. Code, § 1089), applies to appellate review of a trial court’s decision to grant a new trial on the basis of concealment of bias. (Weathers, supra, 5 Cal.3d at p. 106 [applying substantial evidence test]; Lane, supra, 22 Cal.4th at p. 412 [same].) We need not decide this issue, however, as we are satisfied the evidence supports the trial court’s finding of concealed bias as a demonstrable reality.

It was undisputed that Juror No. 8 described members of the sheriff’s department as “all good people,” a characterization that manifestly reflects a bias in favor of the sheriff’s department as a whole. (See, e.g., Weathers, supra, 5 Cal.3d at p. 104 [“one juror’s comment about ‘how good Kaiser Hospital was’ and that ‘we can’t find them guilty in this case because if we do, we would be attacking it and endangering the whole hospital system’ [constituted] both . . . an irregularity in the proceedings of the jury and . . . evidence of concealment of bias”].) As the finder of fact, the trial court could reasonably infer that Juror No. 8’s opinion of the sheriff’s department was based on her church relationships with non-witness members of the department, which can be presumed to have existed before the trial began. We find no error in the trial court’s implied finding that Juror No. 8 was biased in favor of the sheriff’s department from the outset of the trial.

The County argues that Juror No. 8 was merely expressing “a default belief that, absent contrary evidence, Sheriff’s deputies and other department officers are generally good people attempting to serve the public.” However, the minority jurors’ declarations indicate that Juror No. 8 went much further. Read together, the minority jurors’ declarations show that Juror No. 8 declared a predisposition in favor of the sheriff’s department at the beginning of deliberations, linked her predisposition to church relationships with members of the department, acknowledged that these relationships “heavily” influenced her votes, and refused to deliberate further. The minority jurors’ declarations, on which the trial court actually relied, establish as a demonstrable reality that Juror No. 8 harbored an actual bias in favor of the sheriff’s department, rather than a “default belief” in the beneficence of law enforcement. (See, e.g., Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 510 [new trial warranted where jurors concealed bias against police officers, evidenced by their statements during deliberations that police are not to be trusted and always conceal and falsify evidence to “ ‘ “screw over” people’ ”].)

The County challenges the trial court’s finding that Juror No. 8 concealed bias on voir dire. The County notes the trial court only asked whether prospective jurors knew anyone on a list of potential witnesses that included members of the sheriff’s department, and not whether they knew anyone from the department. The County also notes that Juror No. 8 was only asked by the Evanses’ trial counsel whether she had “any problem one way or the other with law enforcement,” an awkwardly phrased question which, the County contends, was not reasonably calculated to elicit information concerning casual acquaintances from the sheriff’s department. Although the trial court’s voir dire examination may have been imperfect, and trial counsel’s questioning inartful, we cannot say the trial court abused its discretion in finding that Juror No. 8 concealed bias.

Much of the voir dire questioning focused on jurors’ interactions and experiences with the sheriff’s department and whether they harbored attitudes favorable or unfavorable to the department that could have prevented them from being fair and impartial. Several prospective jurors disclosed relationships with witnesses who were members of the sheriff’s department, including relationships formed through church and social media. Other prospective jurors disclosed more attenuated connections to the sheriff’s department. For example, one prospective juror disclosed that she had previously worked for the library and sometimes called the sheriff’s department for help fingerprinting employees and volunteers. Another prospective juror disclosed that she had previously worked for a chiropractor that treated the sheriff and his wife. Another prospective juror disclosed that she was friends with friends of the sheriff. The trial court emphasized the importance of “open and honest” communication, and encouraged the venire to raise “any potential feelings of maybe some partiality, favoritism, [or] bias” that might be relevant to the case.

The record of voir dire amply supports the conclusion that the nature of the case and substance of the questioning should have prompted Juror No. 8 to disclose her connections to the sheriff’s department and attendant belief that its members are “all good people.” (See Clemens v. Regents of University of California (1971) 20 Cal.App.3d 356, 362-363 [“We believe the nature of the case and general tenor of the jury voir dire with respect to the occupations of the jurors and their relations with the medical profession should have indicated to juror Pruden a need to volunteer information as to his background and to elaborate on his state of mind even though the court and counsel did not pursue the subjects in detail,” italics omitted].) The trial court, which presided over jury selection and was in the best position to observe Juror No. 8’s demeanor and evaluate her credibility, reasonably concluded that she committed misconduct by concealing bias.

3. Refusal to Deliberate

Finally, the County argues the trial court erred in finding that Juror No. 8 refused to deliberate. “Bias is often intertwined with a failure or refusal to deliberate.” (People v. Lomax (2010) 49 Cal.4th 530, 589.) “A refusal to deliberate is misconduct.” (Ibid.) “A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury.” (People v. Cleveland, supra, 25 Cal.4th at p. 485.) Substantial evidence supports the trial court’s determination that Juror No. 8 refused to deliberate.

Juror No. 11 averred that Juror No. 8 “was adamant from the beginning of deliberations that her mind was made up in favor of Defendant County of Nevada.” Juror No. 10 averred that Juror No. 8 evinced a negative attitude towards the Evanses, and appeared to be unwilling to analyze the facts or review the jury instructions. The trial court was entitled to credit this evidence, which adequately supports the conclusion that Juror No. 8 refused to deliberate.

III. DISPOSITION

The trial court’s order granting the Evanses’ motion for a new trial on the basis of juror misconduct is affirmed. Respondents William and Yvonne Evans shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)&(2).)

/S/

RENNER, J.

We concur:

/S/

RAYE, P. J.

/S/

HULL, J.