The Mind of a Jury

Guernsey v. City of Salinas, No. H043283 (D6 Dec. 17, 2018)

The Court of Appeal reverses and remands a defense verdict for one defendant because some jury instructions suggested a government immunity that wasn’t really in play. 

To show prejudice, plaintiff submitted a bunch of juror affidavits, which suggested that the jury relied on the instruction in answering “no” on two liability questions and that they “agreed” the instruction precluded liability. The Court holds that those statements are inadmissible under Evidence Code § 1150, which bars evidence of jurors’ subjective mental impressions. 

In doing so, it rejects a statement in dicta in Harb v. City of Bakersfield, 233 Cal. App. 4th 606 (2015), which suggested in passing that evidence of a jury’s “verbal agreement” was objective enough to admit under § 1150. As the Court explains, the statements of jurors during deliberation are admissible under § 1150 only when the statements themselves are juror misconduct. (E.g., an admission that the juror consulted an outside attorney for advice on the law.)  

The Court finds prejudice nonetheless. It finds persuasive (and admissible) the fact that the jury had made written annotations on its copy of the incorrect instruction, as well as on the verdict form. Moreover, some of the questions asked by the jury suggested confusion, and the evidence overall suggested that, if the jury weren’t confused about the immunity, it would have found the defendant liable.

Reversed.

Pick Three...

Eng v. Brown, No. D071773 (D4d1 Mar. 22, 2018)

Appellant in this case violated a rule of thumb that applies to appealing an adverse civil judgment in California: It does not matter how many times the trial court messed up, absent extraordinary circumstances, an appellant should pick, at most, the three best issues to raise on appeal and concentrate on them. If a reversal isn’t in the cards on your top three issues, the chances that it could be on issues six or seven are fleetingly slim. Plus, when too many issues are raised, the word limits on the briefs lead to underdeveloped arguments that aren’t very convincing.

Pre-Offer Expert Fees Unrecoverable Under § 998.

Toste v. Calportland Constr., No B256946 (D2d6 Mar. 2, 2016)

Plaintiff appeals on a grab-bag of issues after a defense verdict in a wrongful death case. The jury found one defendant negligent but no causation for any of them. There are two procedural issues: a new trial motion based on jury misconduct and the rejection of a § 998 offer.

Guilty, Guilty, Guilty!

CB Richard Ellis v. Tera Nova Consultants, No. G049803 (D4d3 Oct. 7, 2014)

During an effort put a defunct LLC’s members on the hook for its debts, the trial court let the jury see an arbitral ruling—complete with reasoning and factual findings—against the LLC that was the basis of those debts. That was error in that it potentially suggested that the defendants—nonparties in the arbitration—might be bound by the award. The ruling was also hearsay. The court, however, finds the mistake harmless. 

There’s also a jury misconduct issue. Two jurors submitted very brief declarations under Evidence Code § 1150 that another juror had said he knew the defendants and that they were “guilty, guilty, guilty.” That juror, however, submitted a detailed declaration saying he did nothing of the sort, and the court finds that it was not an abuse of discretion for the trial court to rely on the detailed declaration to deny a new trial motion. That seems right. But as I’ve said before, our courts really need to get out of this business altogether.

Affirmed.