Claiming the Mantle of the 13th Juror

Ryan v. Crown Castle NG Networks, Inc., No. H041712 (Dec. 13, 2016)

A jury in this case rendered an apparently nonsensical damages verdict that could not be squared with the instructions and the verdict form. But in response to Plaintiff’s new trial motion on inadequate damages, the trial judge ruled that the court could not “substitute its judgment for that of the jury” and that “declarations were necessary to determine what the jury actually did.” 


On both points, however, the trial court was wrong. In California civil procedure, as essential purpose of a new trial motion is for the trial court to act as a 13th juror, in which role that court can order a do-over if the jury’s verdict is illogical or even against the weight of the evidence, as assessed by the trial judge. Thus, notwithstanding some slightly confusing language in older case law, the court has not only the right, but the duty to substitute its judgment for the jury’s under the proper circumstances.  

Moreover, it doesn’t take juror declarations to assess that a damages verdict can’t be squared with the liability findings, the instructions or the verdict form itself. Indeed, when it comes to deliberations regarding how a damages figure was reached, juror declaration are generally not admissible. And in this case, the lack of legal or factual foundation for the award was evident from the fact that the jury found liability on only a contract, not a tort, theory, but then awarded damages that were clearly based on a tort, not a contract, measure.

And given the internal inconsistency in the verdict, a retrial only on damages would be inappropriate. It was not clear from the record that the jury’s only error was in calculating damages, as opposed to underlying questions about the appropriate theory of liability. Nor was it clear that the verdict was not the result of an improper compromise. So unless the plaintiff accepted the amount of the original jury award on remand, a full blown new trial would be required.

Finally, the court gives some comments on special verdicts that it perceives may be useful on remand. While a special verdict can improve the quality of fact-finding, it creates appellate risks that are absent with a general verdict, in which all findings in support of the ultimate answer are presumed. So if a special verdict is to be employed, it needs to be carefully drafted with input from the court, so that it can effectively guide the fact-finding process. 

Reversed.