Clemens v. Regents of University of California

• Decision Date: 30 September 1971
• Citation: 97 Cal.Rptr. 589,20 Cal.App.3d 356
• Court: California Court of Appeals Court of Appeals
• Parties: Kenneth CLEMENS, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents. Civ. 38092.

Page 589

97 Cal.Rptr. 589

20 Cal.App.3d 356

Kenneth CLEMENS, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

Civ. 38092.

Court of Appeal, Second District, Division 3, California.

Sept. 30, 1971.

Rehearing Denied Oct. 28, 1971.

Hearing Denied Nov. 24, 1971.

Irving H. Green, Eliot B. Feldman, Los Angeles, for appellant.

Belcher, Henzie & Biegenzahn, Robert D. Walker, Los Angeles, for respondents The Regents of the University of California, Dr. Ronald B. Rochlin, Dr. William Blakely.

Gilbert, Thompson, Kelly, Crowley & Jennett, James B. Crowley, Jean Wunderlich, Los Angeles, for respondent Dr. Charles Smart.

Haight, Lyon & Smith, William M. Fitzhugh and Henry F. Walker, Los Angeles, for respondent Dr. Peter G. Gaal.

ALLPORT, Associate Justice.

This case is now before us as a sequel to Clemens v. Regents of University of California, 8 Cal.App.3d 1, 87 Cal.Rptr. 108, decided May 25, 1970. (Pursuant to rule 12(a) Cal. Rules of Court, we have made that record available to us.) On that appeal plaintiff sought relief from an adverse judgment entered upon the verdict of a jury in an action for damages for alleged medical malpractice. It was there contended that (1) defendants were liable as a matter of law; (2) there was error in jury instruction; (3) there was error in certain rulings and conduct of the trial court; and (4) misconduct of a particular juror required reversal of the judgment. After resolving the first three of these contentions adversely to plaintiff, this court in Clemens, supra, vacated the trial court's order made on October 20, 1967, denying plaintiff's motion for new trial with instructions to hold a new hearing on that motion. Pursuant to the decision in Clemens, supra, a rehearing was held. Upon rehearing the following memorandum decision was rendered by the trial court:

'The Court has very carefully reviewed all of the affidavits submitted in connection with the Motion for New Trial in this matter.

This case was remanded to this Court solely for the purpose of determining whether or not this Court should grant a new trial in view of the decision in People v. Hutchinson (71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132) in relation to the conduct of juror Pruden.

The Court has come to the conclusion:

1. That no response made by the juror in question in the Voir dire examination constituted or was a fraud upon the Court or constituted a fraud in relation to his qualifications to sit as a juror;

2. That the juror in question was not guilty of any coercion resulting in the verdict for the defendants;

3. That the juror in question did not exercise any undue influence over the decision reached by the majority of the jurors in this case.

Consequently, in view of the above, the Motion for New Trial is denied.'

Plaintiff now appeals from the 'Judgment entered in the above entitled action in favor of the defendants * * * and against plaintiff * * * on the 28th day of August, 1967 * * * and also appeals from the Memorandum Decision on Motion For New Trial,' denying the motion. No appeal lies from the order denying the motion for a new trial and the purported appeal therefrom must be dismissed. (Code Civ.Proc. § 904.1; Bakity v. County of Riverside, 12 Cal.App.3d 24, 28, fn. 1, 90 Cal.Rptr. 541; Capaldi v. Levy, 1 Cal.App.3d 274, 277, fn. 1, 81 Cal.Rptr. 629.) The notice of appeal in Clemens v. Regents of University of California, supra, 8 Cal.App.3d 1, 87 Cal.Rptr. 108, was filed October 27, 1967, and that appeal was governed by Code of Civil Procedure, sections 956 and 963. (Repealed in 1968.) At that time, although nonappealable, an order denying a motion for a new trial was subject to review on appeal from the judgment. (Campbell v. Adams, 250 Cal.App.2d 756, 757, fn. 1, 59 Cal.Rptr. 63; Richards v. Gemco, 217 Cal.App.2d 858, 859, fn. 1, 32 Cal.Rptr. 65.) Since Clemens, supra, neither affirms nor reverses the judgment in this case but only establishes the law of the case as to points one through three, the judgment therein is not yet final. ¹ We conclude that appellate review of the claim of juror misconduct lies on this appeal from the judgment entered in Clemens, supra, August 28, 1967.

We turn now to a review of the merits of the trial court's ruling on rehearing of the claim of jury misconduct. A consideration of the memorandum decision referred to above compels the conclusion that, in denying plaintiff's motion, the court below misconstrued its function and failed to find on the issues material to a proper resolution of that claim of error. It is obvious that the findings of lack of fraud, coercion and undue influence on the part of juror Pruden were based upon the belief that none of the eight other jurors voting for verdict did so as the result of the statements or actions of this particular juror. This is made clear by reference to the following comment of the trial court made during the rehearing of the motion:

'Well, one very interesting thing the court has noted and that is that none of the jurors whose affidavits were submitted who voted in behalf of the defendant indicated that they were persuaded to vote in that fashion or in that manner by anything that the doctor had to say.

There are affidavits indicating that they thought--at least one of them thought that what the doctor had to say influenced someone else but not them.'

Evidence of the effect of statements or conduct of a juror upon the state of mind of the other jurors is incompetent. (Evid.Code, § 1150(a). ² ) In Anderson v. Pacific Gas & E. Co., 218 Cal.App.2d 276, 280--281, 32 Cal.Rptr. 328, 331, it was said:

'It is settled that those affidavits averring that Larson and his fellow jurors were in no way affected by his misconduct were properly stricken by the trial court. The affidavits of jurors may not be received as evidence that the misconduct of one of their number did not influence their deliberations or decision. (Kimic v. San Jose-Los Gatos etc. Ry Co. (1909) 156 Cal. 379, 397 (104 P. 986).)'

In ruling as it did the court below failed to consider and find upon the issue of plaintiff's constitutional right to trial by a jury consisting of twelve unbiased unprejudiced individuals. (Cal.Const. art. I, § 7.) In Deward v. Clough, 245 Cal.App.2d 439, at page 444, 54 Cal.Rptr. 68, at page 72 this court said:

'In both the federal courts (by U.S. Const., Seventh Amendment) and in the state courts of California (Cal.Const., art. I, sec. 7) the right to a trial by jury in an action such as this is jurisdictional. (People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283 (231 P.2d 832).) And 'The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury. * * *' (People v. Hughes, 57 Cal.2d 89 (17 Cal.Rptr. 617, 367 P.2d 33).) The guarantee is to twelve impartial jurors. This does not mean that every insignificant infringement of the rules by a juror calls for a mistrial or a new trial. Code of Civil Procedure section 657, subdivision 1, calls for the granting of a new trial for irregularity in the proceedings of the jury by which either party was prevented from having a fair trial.'

For a juror to prejudice the case is serious misconduct. (Code Civ.Proc. § 611; City of Pleasant Hill v. First Baptist Church, 1 Cal.App.3d 384, 428, 429, 82 Cal.Rptr. 1; Deward v. Clough, Supra, 245 Cal.App.2d at page 444, 54 Cal.Rptr. 68.) The existence of an irregularity in the proceedings of the jury contemplated by Code of Civil Procedure, section 657, subd. 1, ³ as being a ground for a new trial when tried on conflicting affidavits or declarations, is a question of fact to be resolved by resort to competent evidence. (Weathers v. Kaiser Foundation Hospitals, 5 Cal.3d 98, 108, 109, 95 Cal.Rptr. 516, 485 P.2d 1132.)

A proper determination of the issue in the instant case required a finding by the trial court as to whether juror Pruden himself entertained and concealed such a bias or prejudice toward plaintiff during his Voir dire examination as to prevent him from giving plaintiff a fair trial (Pollock v. Standard Oil Co., 256 Cal.App.2d 307, 309, 64 Cal.Rptr. 66; Kraus v. Walt Disney Productions, 221 Cal.App.2d 736, 740, 34 Cal.Rptr. 702), or whether he was guilty of prejudging the case to plaintiff's detriment. No such factual finding was made by the trial court. We cannot therefore resort to the sometimes convenient prerogative of an appellate court as expressed in Weathers v. Kaiser Foundation Hospitals, Supra, 5 Cal.3d 98, 108, 95 Cal.Rptr. 516, 522, 485 P.2d 1132, 1138: '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.' (Citations omitted.) Nor may we merely look to the rule of abuse of discretion as set forth in Diemer v. Eric F. Anderson, Inc., 242 Cal.App.2d 503, 509, 51 Cal.Rptr. 657, in considering the propriety of the ruling of the trial court. To adopt such procedure would be to let form control substance. (Lippold v. Hart, 274 Cal.App.2d 24, 26, 78 Cal.Rptr. 833.) With respect to the form of relief now available, it appears that the time for ruling on plaintiff's motion expired no later than 60 days after the filing of notice of intention to move for a new trial (September 1, 1967) except as such was modified by Clemens, supra. (Code Civ.Proc. § 660.) We conclude that the trial court's jurisdiction to act has now expired. It would be inappropriate for us to attempt to revive that jurisdiction by further remand for a second reconsideration of the questions of bias, prejudice and prejudgment. (Lippold v. Hart, Supra, 274 Cal.App.2d 24, 27, 78 Cal.Rptr. 833.) In view of the conclusions we reach herein remand for further trial court consideration of the motion for a new trial would be futile. There is a maxim of law that it is to the interest of the republic that there be...