Di Donato v. Santini

• Decision Date: 22 July 1991
• Docket Number: No. B039949,B039949
• Citation: 283 Cal.Rptr. 751,232 Cal.App.3d 721
• Court: California Court of Appeals Court of Appeals
• Parties: Adrienne Di DONATO, Plaintiff, Cross-Defendant, and Appellant, Joshua Di Donato, Cross-Defendant and Appellant, v. Steven H. SANTINI, Defendant, Cross-Complainant, and Respondent.

Page 751

283 Cal.Rptr. 751

232 Cal.App.3d 721

Adrienne Di DONATO, Plaintiff, Cross-Defendant, and Appellant, Joshua Di Donato, Cross-Defendant and Appellant, v. Steven H. SANTINI, Defendant, Cross-Complainant, and Respondent.

No. B039949.

Court of Appeal, Second District, Division 4, California.

July 22, 1991.

As Modified On Denial of Rehearing Aug. 8, 1991.

Review Denied Oct. 2, 1991.

[232 Cal.App.3d 726] Edward J. Horowitz, for plaintiff, cross-defendants, and appellants.

Robert P. Mandel, Grayson, Givner, Booke, Silver & Wolfe, and Robert A. Levinson, for defendant, cross-complainant, and respondent.

GEORGE, Acting Presiding Justice.

Appellant Adrienne Di Donato appeals from a judgment in favor of respondent Steven H. Santini, her former husband, in her action seeking damages for respondent's alleged refusal to share the profits of joint business ventures and to accord appellant full title to a single-family residence. Appellant also appeals, as does Joshua Di Donato (her son from a prior relationship), from a judgment entered in favor of respondent on his cross-complaint, which sought partition and sale of the residence and declaratory relief.

Appellants contend that the trial court erred in permitting respondent to exercise peremptory challenges to excuse women from the jury panel for a discriminatory purpose, resulting in a predominantly male jury. In light of the recent decision by the United States Supreme Court in Edmonson v. Leesville Concrete Company, Inc. (1991) 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660, and for the reasons that follow, we conclude that the trial court committed reversible error in (1) denying appellants' motion to dismiss the jury panel without first requiring respondent to demonstrate that his peremptory challenges were exercised on a neutral basis related to the particular case, and (2) refusing to hear the motion until after the jury had been sworn. Because the trial court, in deciding the issues raised in the cross-complaint, relied upon the verdict rendered by the jury on the causes of action alleged in the complaint, both the judgment entered on the complaint and the judgment entered on the cross-complaint must be reversed. Therefore we need not, and do not, address the other contentions raised by appellants. ¹

FACTUAL AND PROCEDURAL HISTORY

Adrienne, a registered nurse, and Steven, a licensed psychologist, met in 1973, began living together in 1974, and were married in October 1975. They separated five months later, and the marriage was dissolved in 1976. The two never remarried, although in 1978 they resumed a personal relationship and lived together with Joshua during various periods between 1979 and 1986.

After dissolution of the marriage, Steven started a business which provided educational programs for nurses, psychologists, and others, enabling students to meet certain educational requirements in a given field. Adrienne worked to market the various programs. In late 1985, Steven purchased the residence in issue and, in November 1985, gave Adrienne a note promising to convey a one-half interest in the property to Adrienne and Joshua. In 1986, the parties separated permanently.

In March 1987, Adrienne filed the present action against Steven, seeking damages for breach of oral agreements, breach of the implied covenant of good faith and fair dealing, and fraud. She further sought the reasonable value of services rendered, specific performance, an accounting, and injunctive relief. Adrienne alleged that in August 1979, when the two again had commenced living together and holding themselves out as husband and wife, Steven promised he would support Adrienne and Joshua, and that Adrienne would receive one-half of the earnings of various educational programs which they mutually had developed and one-half of the property they had accumulated. Adrienne further alleged that in June 1985, Steven orally agreed that Adrienne would have exclusive title to the residential property, and that he would execute an agreement giving Adrienne 25 percent of the profits of one of the educational training programs developed by Steven and Adrienne.

Steven filed a cross-complaint against Adrienne and Joshua, seeking partition and sale of the residence and asserting Adrienne had not complied with the terms of a marital property settlement agreement entered into at the time their marriage was dissolved.

Trial on the causes of action alleged in the complaint was before a jury, which, by a 10 to 2 vote, found that Steven had not breached any agreement to share his business property and proceeds with Adrienne. The jury, unanimously, also found that Steven had not breached any agreement to give Adrienne sole title to the residence.

The trial court dismissed the jury, severed the cross-complaint from the complaint, and entered judgment on the verdict. "After hearing and considering all the evidence, receiving the jury's special verdict, and considering argument," the court found in favor of Steven on the cross-complaint. The court ordered partition and sale of the residence, with the proceeds to be paid 50 percent to Steven, 25 percent to Adrienne, and 25 percent to Joshua, and determined that the second cause of action for declaratory relief was moot in light of the jury's verdict. After motions for new trial on the complaint and the cross-complaint were denied, the residence was sold and the proceeds distributed pursuant to the terms of the judgment on the cross-complaint.

JURY SELECTION

We must describe in some detail the proceedings relating to selection of the jury. Jury selection commenced November 14, 1988. Immediately prior thereto, defense counsel sought to have the trial judge ask each juror whether or not he or she previously had been married and whether and how each marriage had terminated. The judge declined this request, advising defense counsel to make his own inquiry of the potential jurors.

During the course of the first afternoon of jury selection, defense counsel exercised six of the eight peremptory challenges accorded him by former Code of Civil Procedure section 601. ² In each instance, he excused a female member of the jury panel. The first of these was Arnetta Robinson, an administrative clerk, who previously had been divorced and presently was separated from her second husband. She had indicated in response to questioning by defense counsel that her marital experience would not affect her ability to be impartial. Next, defense counsel excused Joan Smith, who was a registered nurse and divorced. Smith had indicated her marital status would not affect her ability to be impartial. At this point in the jury selection, Adrienne (who appeared in propria persona, as did Joshua) asked to approach the bench. The court refused permission.

Next, defense counsel excused Alida Mendez. Ms. Mendez, a postal clerk, had indicated that she presently was married but previously had been divorced. When queried both by the trial judge and defense counsel, she indicated her prior divorce would not affect her ability to be impartial. Next, defense counsel excused Juanita Gogerty. Gogerty, a retired bank teller, also had been divorced and, in response to defense counsel's query, stated her experience would not affect her ability to be impartial.

Next, defense counsel excused Patricia Phillips, a bookkeeper, who had indicated she was single. Defense counsel had not inquired whether she previously had been married, but only whether, in effect, she would be a fair juror, to which she had responded in the affirmative. Next, defense counsel excused Marion Marsh, a real estate broker, who had stated she was divorced but that her ability to be impartial would not be affected by that circumstance. Immediately after defense counsel exercised this peremptory challenge, Adrienne again asked the court whether "we" could approach the bench, but the trial judge denied the request.

At the end of the afternoon, after the prospective jurors had been excused, Adrienne, indicating she wished she had been permitted to raise the issue earlier, orally objected to defense counsel's use of peremptory challenges to exclude women (also observing that two of these excluded jurors were Black and one was Hispanic). When Adrienne stated she would file a written motion on this issue in the morning, the court replied: "Well, I will overrule that objection. I mean, just for the record so that that's on the record, I haven't noticed anything like that thus far."

The following morning, appellants submitted a written motion to dismiss the jury panel on the ground that respondent had exercised his peremptory challenges in a systematic fashion to exclude women from the jury panel. Appellants' motion relied on the federal and state Constitutions, state statutes, and the decision in Holley v. J & S Sweeping Co. (1983) 143 Cal.App.3d 588, 192 Cal.Rptr. 74. Prior to resumption of jury selection, Adrienne requested a conference outside the presence of the jury, which request the trial judge refused.

Voir dire of the jury resumed. Defense counsel exercised his seventh peremptory challenge to excuse a male potential juror, Miguel Lau, a maintenance supervisor, who never had been married. Defense counsel then used his eighth and final peremptory challenge to excuse a woman, Joan McCarty, a service representative, who never had been married. Defense counsel had asked this potential juror whether the circumstance that she never had been married would affect her ability to decide fairly a case involving persons who had been married, and had received a negative reply.

The jury, consisting of four females and eight males, was sworn. During the selection of alternate jurors, defense counsel used one peremptory challenge to excuse a female member of the panel, Jean Schwarz. Ms. Schwarz, a part-time apartment manager, was married. The alternate jurors, consisting of one male and one female, then were sworn.

Thereafter,...