Burns v. 20th Century Ins. Co.

• Decision Date: 09 September 1992
• Docket Number: No. B059586,B059586
• Citation: 12 Cal.Rptr.2d 462,9 Cal.App.4th 1666
• Court: California Court of Appeals Court of Appeals
• Parties: Rose Ann BURNS, Plaintiff and Appellant, v. 20TH CENTURY INSURANCE COMPANY, Defendant and Respondent.

Page 462

12 Cal.Rptr.2d 462

9 Cal.App.4th 1666

Rose Ann BURNS, Plaintiff and Appellant, v. 20TH CENTURY INSURANCE COMPANY, Defendant and Respondent.

No. B059586.

Court of Appeal, Second District, Division 7, California.

Sept. 9, 1992.

James L. Craig, Beverly Hills, and Ronald P. Kaplan, Los Angeles, for plaintiff and appellant.

Demler, Armstrong & Rowland, John R. Brydon, Long Beach, Horvitz & Levy, David S. Ettinger, and Douglas G. Benedon, Encino, for defendant and respondent.

FRED WOODS, Associate Justice.

I. INTRODUCTION

Plaintiff and appellant, Rose Ann Burns ("Burns"), sued her insurance company, defendant and respondent 20th Century Insurance Company ("20th Century"), for bad faith, alleging 20th Century unreasonably delayed paying her uninsured motorist claim. Following a four-week trial, the jury returned a verdict in favor of 20th Century.

Burns does not raise a substantial evidence issue on appeal. Her appeal centers around three purported errors committed by the trial court.

First, Burns contends the trial court abused its discretion in denying her new trial motion based on juror misconduct. In support of her motion for new trial, Burns submitted two declarations from her attorney's investigator which purported to recount conversations the investigator had with two jurors regarding their deliberations. No juror declarations were submitted in support of the new trial motion.

Second, Burns contends the trial court abused its discretion by denying her motion for a blanket exclusion from the jury panel of all jurors insured by 20th Century. The motion was made by Burns without having exhausted her peremptory challenges at trial.

Third, Burns contends the trial court did not make a sufficient record when it exercised its discretion under Evidence Code section 352 in excluding evidence which allegedly showed 20th Century discriminated against Jewish claimants or claimants with Jewish attorneys. ¹

We find no merit in any of Burns' contentions.

II. FACTUAL AND PROCEDURAL SYNOPSIS

Burns brought an action, alleging causes of action for breach of the implied covenant of good faith and fair dealing, fraud, breach of fiduciary duties, breach of contract, and intentional and negligent infliction of emotional distress in connection with 20th Century's handling of her uninsured motorist claim. Only the cause of action for breach of the covenant of good faith and fair dealing was submitted to the jury. ² Both compensatory and punitive damages issues were presented to the jury for resolution.

The jury returned a verdict in favor of 20th Century, finding 20th Century did not breach the implied covenant of good faith and fair dealing in its handling of Burns' uninsured motorist claim. Burns moved for a new trial solely on the basis of alleged juror misconduct. In support of the motion, Burns submitted two declarations from her attorney's investigator purporting to recount his conversations with two jurors following the verdict. The first declaration reads, in relevant part:

"I, ROBERT TOWNSEND, declare and say:

"That I am employed by the Law Offices of Sanford M. Gage as their Chief Investigator.

"...

"I informed [Juror Steven Lott] that I had been advised that a substantial number of the jury panel had been insured by 20th Century Insurance Company, and inquired whether or not that was discussed or entered into the discussions of the jury in any way. He informed me that he was one of the jurors who was insured by 20th Century Insurance Company, and stated that shortly after retiring to the Jury Room, he openly stated to the jurors that he had been insured with 20th Century Insurance Company for sometime and had never received treatment such as that described in the plaintiff's case."

In relevant part, the second declaration reads:

"I informed [Juror Stephanie Hemberg] that I had been advised that a substantial number of the jury panel had been insured by 20th Century Insurance Company, and inquired whether or not that was discussed or entered into the discussions of the jury in any way. She informed me that she was one of the jurors who was insured by 20th Century Insurance Company, and stated that shortly after retiring to the Jury Room, she openly stated to all of the jurors that she had been insured with 20th Century Insurance Company for sometime and had never received treatment such as that described in the plaintiff's case."

The motion was denied and this appeal followed.

III. DISCUSSION

A. The Hearsay Declarations Of The Investigator For Burns' Attorney Do Not, And Cannot, Establish Juror Misconduct.

1. The declarations contain inadmissible hearsay.

Evidence Code section 1150, subdivision (a) provides, in relevant part: "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." (Emphasis added.) In relevant part, Evidence Code section 1200 provides: "Except as provided by law, hearsay evidence is inadmissible."

The only evidence Burns submitted in support of her new trial motion consisted of two declarations from her attorney's investigator concerning purported statements and thoughts of two jurors during their deliberations. The declarations are inadmissible hearsay. As explained by the California Supreme Court under identical circumstances, "[t]he sole evidence of the alleged misconduct was the declaration of a defense investigator that purports to relate a conversation with the juror. It is settled, however, that 'a jury verdict may not be impeached by hearsay affidavits.' " (People v. Williams, (1988), 45 Cal.3d 1268, 1318, 248 Cal.Rptr. 834, 756 P.2d 221.)

Similarly, in People v. Cox (1991) 53 Cal.3d 618, 280 Cal.Rptr. 692, 809 P.2d 351, the defendant submitted the unsworn statement of a juror and the affidavit of a defense investigator recounting the juror's statement to him. After stating the affidavit was inadmissible hearsay, the court concluded, "[t]he record thus contains no competent evidence the jury considered matters not introduced at defendant's trial; the court thus properly denied the motion [for new trial] for lack of evidentiary support." (Id. at p. 697, 280 Cal.Rptr. 692, 809 P.2d 351; see also People v. Manson (1976) 61 Cal.App.3d 102, 216, 132 Cal.Rptr. 265 [purported statements of a juror set forth in counsel's declaration "are nothing more nor less than hearsay or double hearsay and are incompetent and insufficient to impeach the verdict"]; People v. Villagren (1980) 106 Cal.App.3d 720, 729-730, 165 Cal.Rptr. 470 [declaration of defense counsel concerning conversation with juror "contained hearsay thrice and twice removed"]; People v. Spelio (1970) 6 Cal.App.3d 685, 689-690, 86 Cal.Rptr. 113 [affidavits by appellant's attorney, appellant, appellant's stepmother, and the codefendant alleging conversations with a juror after the trial; "[w]e are of the opinion that section 1150 of the Evidence Code should not be expanded to require action on the basis of hearsay twice and thrice removed, even though it is reiterated four-fold in four separate affidavits"].)

Burns relies on Pollock v. Standard Oil Co. (1967) 256 Cal.App.2d 307, 64 Cal.Rptr. 66 as authority for the proposition that the declarations of the investigator for her attorney are admissible to show juror bias. Burns' reliance is misplaced. In Pollock, following denial of the defendant's motion for new trial, one of the jurors telephoned the trial judge and told him she had concealed on voir dire a bias in favor of the plaintiff. The trial judge informed both counsel of this communication. Immediately thereafter, the defendant filed a motion to vacate the order denying the motion for new trial pursuant to Code of Civil Procedure section 473. The motion was accompanied by affidavits from defense counsel and an investigator that they had spoken with the juror and that she told them that at the time of voir dire she had concealed a bias in favor of the plaintiff. Shortly thereafter, the defendant submitted the sworn declaration of the juror which was not considered because of untimely presentation. (Id., at pp. 308-309, 64 Cal.Rptr. 66.)

The Court of Appeal affirmed the trial court's order vacating the order denying a new trial and vacating the judgment, finding "the remarkable combination of circumstances here does warrant such relief. A juror, whose vote was crucial to the verdict, voluntarily revealed her previously concealed bias, without suggestion or prodding of any sort, only after the order denying new trial." (Id. at p. 310, 64 Cal.Rptr. 66.) Under these circumstances, the affidavits of the attorney and the investigator setting forth overt statements of bias made directly to them were admissible. (Ibid.; see also Deward v. Clough (1966) 245 Cal.App.2d 439, 443, 54 Cal.Rptr. 68 [error to deny new trial motion; declaration of plaintiff's mother stated she had heard juror state prior to deliberations: " ' "I don't see why they don't open up the jury room now. We could bring in a verdict already." ' "].)

Here, in contrast to Pollock and Deward, the declarations of the investigator for Burns' attorney do not purport to establish misconduct on the basis of overt confessions of bias made directly to the investigator or the trial court "without suggestion or prodding," but on the basis of innocuous discussions which purportedly took place in the jury room and which the investigator did not hear. The declarations are therefore inadmissible hearsay. To the extent Pollock can be read to suggest a different result, it conflicts with subsequent California Supreme Court authority and for this court to acquiese in such a suggestion would be improper. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) We note that Pollock, decided in...