Case Number: KC064685 Hearing Date: June 13, 2014 Dept: K

BOGGIO v. ARMANTROUT, KC064685

Motion for New Trial, filed by Plaintiff Michelle Boggio

Tentative Ruling:

DENY

Analysis:

Plaintiff Michelle Boggio (“Plaintiff”) sued Defendant Richard Armantrout (“Defendant”) for negligence. At trial, Plaintiff testified that Defendant bumped her knee with his truck, causing injury. Defendant denied that his truck ever touched her or that her current knee problems were the result of any contact with his truck. The jury returned a verdict for Defendant. The jury was polled. The jury found by an 11-1 vote that Defendant was negligent, but found by a 9-3 vote that Defendant’s negligence was not a substantial factor in causing Plaintiff’s harm. The Court entered judgment for Defendant on March 27, 2014.

Plaintiff now files a motion for new trial due to juror misconduct. In support of her motion, she attaches the sworn declaration of Jackie Ferguson, who was Juror #4 and one of the three dissenting jurors on the issue of causation. Ferguson reports two incidents of juror misconduct:

(1) “Juror Four” made two improper statements: (a) during Plaintiff’s testimony, “Juror Four” stated that Plaintiff “is blond, Argentina is a rich country, and I bet she has a lot of money”; and (b) “[s]hortly after” Plaintiff’s testimony, “Juror Four” stated in the jury room that “I’m not going to give her anything, she doesn’t deserve it.” (Exh. A to Motion for New Trial, ¶ 3.); and

(2) The “Jury Foreman” “made mention that her father was an officer of the law and that she knew the standard police procedures in accordance to her father’s knowledge.” (Id., ¶ 4.)

In opposition, Defendant submits the sworn declarations of Juror #11 and Juror #6, both of whom denied (1) “hear[ing] any juror make a comment about Argentina” or “express any bias or prejudice against [P]laintiff because she was from Argentina”; and (2) “hear[ing] another juror mention that her father was a police officer” or “comment or say what police procedures or policies were.” (Exhs. A and B to Opposition.) Both of these jurors were in the nine-person majority on the issue of causation.

Juror misconduct is a basis for a new trial. (Civ. Proc. Code § 657(2); Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345; Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 506.) Evaluating claims of juror misconduct is a three-step process. (Barboni, 210 Cal.App.4th at 345; Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160; People v. Bryant (2011) 191 Cal.App.4th 1457, 1467.) First, the court must “determine whether the affidavits supporting the motion are admissible.” (Barboni, 210 Cal.App.4th at 345, citation and internal quotations omitted.) Second, the court “must determine whether the facts establish misconduct.” (Id., citation and internal quotations omitted.) The party alleging the misconduct bears the burden of proof on this issue. (Id. at 349.) Lastly, the Court must determine whether the misconduct was prejudicial. (Id. at 345.) Once misconduct is shown, prejudice will be rebuttably presumed. (Tapia v. Barker (1984) 160 Cal.App.3d 761, 765; Enyart, 76 Cal.App.4th at 507; Whitlock, 160 Cal.App.4th at 162; Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1232.) This presumption may be rebutted by (1) “an affirmative evidentiary showing that prejudice does not exist,” or (2) “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.” (Karlsson, 140 Cal.App.4th at 1232; People v. Williams (2006) 40 Cal.4th 287, 333; Tapia, 160 Cal.App.3d at 765.) If an evidentiary showing is made, a court may consider “the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.” (Whitlock, 160 Cal.App.4th at 162, citation and internal quotations omitted.) “A new trial will not be granted for misconduct of the jury where the misconduct is of such a trifling nature that it could not in the nature of things have been prejudicial to the moving party.” (Pleasant Hill v. First Baptist Church (1969) 1 Cal.App.3d 384, 430, citation and internal quotations omitted; Enyart, 76 Cal.App.4th at 507.)

The first step is not really an issue in this case. Evidence Code section 1150 permits jurors to submit sworn declarations regarding “’objectively ascertainable statements, conduct, conditions or events’”; but jurors may not in their declarations “’describe the effect of any event on a juror’s subjective reasoning process’” or “’how [the jurors] arrived at their verdict.’” (Barboni, 210 Cal.App.4th at 349, quoting Bell v. Bayerische Motoren Werke Atkiengesellschaft (2010) 181 Cal.App.4th 1108, 1124-25.) Juror #4’s reports of what the two other jurors said involve “objectively ascertainable statements,” and are admissible. However, Juror #4’s assertion that she “felt [the other jurors’ statements] may have had some influence on the outcome” impermissibly describes “the effect of [an] event on a juror’s subjective reasoning”; the Court will accordingly strike that language from Juror #4’s declaration.

The Court will now analyze the remaining steps as to the two alleged incidents of misconduct.

(1) Concealment of Racial Bias

Plaintiff argues that “Juror Four” concealed a racial bias against Argentinians, and that concealment of such a bias is one of the most incendiary forms of juror misconduct. (Tapia, 160 Cal.App.4th at 765.)

The Court concludes that there was no juror misconduct in this case for two reasons.

First and foremost, the Court finds that the unnamed “Juror Four” did not make any racial motivated statements. To start, the Court finds Juror #4’s declaration reflects a lack of recall. Juror #4 reports that “Juror Four” made the statements regarding Plaintiff’s Argentinian background; if taken at face value, Juror #4 is alleging that she made the statements herself. This is not likely what she meant, but it casts some doubt upon the believability of her declaration. Even apart from this error, the Court finds that Juror #4’s declaration is otherwise not credible. Where, as here, there are conflicting juror declarations, a court is tasked with deciding which declarations to credit. (Barboni, 210 Cal.App.4th at 351; Pleasant Hill, 1 Cal.App.3d at 429; cf. Tapia, 160 Cal.App.3d at 766 (noting court’s far easier task when there are not counter-declarations); Whitlock, 160 Cal.App.4th at 156, 162 (same).) In this case, Juror #4 states “Juror Four” made her second statement “[s]hortly after” Plaintiff’s testimony and “in the jury room.” (Exh. A, ¶ 3(b).) However, the jury in this case did not use the jury room until after the case was submitted to them—which was on a different day than Plaintiff’s testimony. Moreover, Jurors #6 and #11 stated that they never heard any of the statements attributed to “Juror Four”; to the extent the unknown “Juror Four” was, in fact, Juror #5, Juror #6 would have been sitting next to that juror and in a position to hear any such statements. Finally, Juror #4 was also a dissenting juror whose displeasure with the verdict may be motivating her declaration. Any of these three reasons is sufficient to find Juror #4’s declaration not credible; together, they are triply so.

Second, even if the Court were to credit Juror #4’s declaration, the alleged conduct does not rise to the level of juror misconduct. A juror’s concealment of a bias during voir dire can constitute misconduct. (Enyart, 76 Cal.App.4th at 509; Tapia, 160 Cal.App.3d at 765; Pleasant Hill, 1 Cal.App.3d at 431.) But to do so, it must “rise to the dignity of demonstrated concealment of a prejudiced mind.” (Pleasant Hill, 1 Cal.App.3d at 433.) A juror’s failure to speak up is “only ‘passive’ misconduct” that does not necessarily constitute “juror misconduct.” (People v. Nesler (1997) 16 Cal.4th 561, 586-87.) This is not a case, like Enyart, where “Juror Four” was specifically asked about her views of blonde people, or people who may have money because they are Argentinian. At most, “Juror Four” was asked along with all other jurors a blanket, catch-all question about any reasons why she could not serve on this jury; it is not clear whether her failure to respond to this blunderbuss question constitutes the requisite “demonstrated concealment.” Moreover, “Juror Four’s” alleged statements were not made at the outset of the case; rather, they were made during and after the juror heard the evidence (namely, Plaintiff’s testimony). Indeed, “Juror Four’s” statement that Plaintiff did not deserve anything may be a personal evaluation of the credibility of Plaintiff’s testimony, not a pre-existing bias against blondes or people who may be wealthy because they are Argentinian.

(2) Extraneous Information

Plaintiff also contends that Juror #8 introduced extraneous information into the jury’s deliberations by indicating that “her father was an officer of the law and that she knew the standard police procedures in accordance to her father’s knowledge.” (Exh. A to Mot., ¶ 4.)

The Court concludes this does not warrant a new trial for three reasons.

First, for the reasons noted above, the Court does not find Juror #4’s declaration to be credible. Accordingly, the Court finds that Juror #8 made no such statements.

Second, even if the Court were to credit Juror #4’s declaration, Juror #8’s actions do not constitute juror misconduct. “Receiving evidence from sources outside of trial . . . is generally considered to be misconduct.” (Karlsson, 140 Cal.App.4th at 1232; see also Whitlock, 160 Cal.App.4th at 161; Williams, 40 Cal.4th at 333.) At the same time, jurors are permitted to use their own knowledge to evaluate evidence. (Whitlock, 160 Cal.App.4th at 161-62; In re Malone (1996) 12 Cal.4th 935, 963.) This distinction creates a “fine line . . . between using one’s background in analyzing the evidence, which is appropriate, . . . and injecting an opinion explicitly based on specialized information obtained from outside sources, which . . . [is] misconduct.” (Whitlock, 160 Cal.App.4th at 161, citation and internal quotations omitted.) Moreover, a juror’s “mere mention” of extra-judicial information “does not constitute consideration” of that information by the jury. (Barboni, 210 Cal.App.4th at 350; Bandana Trading Co., Inc. v. Quality Infusion Care, Inc. (2008) 164 Cal.App.4th 1440, 1447 (jury may not “decide[] the case based on extraneous information”), italics added.)

In light of these principles, Juror #8 did not engage in misconduct. Juror #8 is alleged to told the other jurors that her father was a police officer and that Juror #8 was accordingly aware of “standard police procedures.” Juror #8 is not alleged to have actually shared any extra-judicial knowledge with the other jurors. At worst, Juror #8 mentioned she had extra-judicial information. At best, she was using her background to evaluate evidence for herself. Either way, Juror #8 did not commit misconduct.

Third, even if the Court were to find misconduct, the presumption of prejudice has been rebutted. There was only one law enforcement official who testified at trial, and his testimony centered solely on what happened when the Plaintiff, her sister, and her mother came to the police station approximately 10 to 12 hours after the incident to file a police report. The officer admitted that he had no independent recollection of the events, and was testifying from his report. The officer’s testimony was at most relevant as a means of supporting or undercutting Plaintiff’s credibility regarding what she claims to have reported to others at or near the time of the accident. In other words, the officer’s testimony constituted impeachment evidence on the collateral matter of what Plaintiff told others after the fact (rather than what happened at the accident itself). Any extra-judicial information regarding police procedures would have accordingly dealt with a collateral impeachment issue that had no reasonable probability of affecting the jury’s verdict. (Accord Pleasant Hill, supra (juror’s discussion of appearance of real property not prejudicial to assessment of property’s value).)

The motion for new trial is DENIED.