Ford v. Bennacka

• Decision Date: 18 December 1990
• Docket Number: No. DO10534,DO10534
• Citation: 276 Cal.Rptr. 513,226 Cal.App.3d 330
• Court: California Court of Appeals Court of Appeals
• Parties: Wayne N. FORD, Plaintiff and Appellant, v. Frank J. BENNACKA, et al., Defendants and Respondents.

Page 513

276 Cal.Rptr. 513

226 Cal.App.3d 330

Wayne N. FORD, Plaintiff and Appellant, v. Frank J. BENNACKA, et al., Defendants and Respondents.

No. DO10534.

Court of Appeal, Fourth District, Division 1, California.

Dec. 18, 1990.

Becker & Jacobovitz and Victor Jacobovitz, Hollywood, for plaintiff and appellant.

Shifflet, Walters, Bailey & Kane, Douglas F. Walters, Christie Morgan and Gregory C. Kane, San Diego, for defendants and respondents.

KREMER, Presiding Justice.

Plaintiff Wayne Ford appeals a judgment by special verdict favoring defendants Frank and Jason Bennacka (Bennacka) on Ford's personal injury complaint for negligence, negligent supervision and negligent entrustment involving a motorcycle accident. Ford contends the superior court should have granted a new trial on the ground of asserted jury misconduct. We affirm the judgment.

I SUPERIOR COURT PROCEEDINGS

Alleging he suffered personal injuries in a motorcycle accident, Ford sued Bennacka for negligence, negligent supervision, and negligent entrustment. Answering Ford's complaint, Bennacka affirmatively defended by alleging Ford's comparative negligence.

The matter was tried to a jury. The court instructed the jury on negligence, comparative negligence, and burden of proof by a preponderance of the evidence. The court also informed the jury it had the duty to follow the law. By special verdict the jury unanimously found Bennacka was not negligent.

Ford sought a new trial on the ground of jury misconduct. (Code Civ.Proc., § 657, subd. 2.) Supporting his motion for new trial, Ford submitted declarations of five jurors essentially asserting the jury confused the concepts of comparative negligence and preponderance of the evidence. ¹

Opposing Ford's motion, Bennacka asserted the juror declarations could not properly be used to impeach the mental processes the jury followed to reach its result. After hearing argument by counsel, the court denied Ford's motion for new trial. Ford appeals.

II DISCUSSION

In denying Ford's motion for new trial, the court concluded the statements in the juror declarations pointed "to no act or occurrence but appeared to show the mental processes of the jurors in arriving at the verdict they rendered. As such, the defendants' argument is well taken, that the statements are not admissible as they attempt to impeach the verdict."

Relying on Krouse v. Graham (1977) 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022, Ford contends the juror declarations were admissible and thus the court erred in not granting a new trial on the ground of prejudicial jury misconduct. ² We disagree. The court properly excluded the juror declarations and correctly denied a new trial.

A APPLICABLE LAW

Evidence Code section 1150, subdivision (a), provides: "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. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." ³

In construing section 1150, the Supreme Court stated in People v. Hutchinson (1969) 71 Cal.2d 342, 350, 78 Cal.Rptr. 196, 455 P.2d 132: "The only improper influences that may be proved under section 1150 to impeach a verdict ... are those Section 1150 "does not envision a procedure whereby a trial judge, as a result of a claim of jury misconduct, reviews a 'replay' of the particular language used by various jurors as they deliberated and makes a subjective determination of its propriety. Such a procedure would be too great an extension of the court's limited authority to invade the traditionally inviolate nature of the jury proceedings." (Johns v. City of Los Angeles (1978) 78 Cal.App.3d 983, 989-990, 144 Cal.Rptr. 629.) "If there is one thing which is clear from the language of Evidence Code section 1150 and the case law dealing with the subject, it is that the mental processes of the jurors are beyond the hindsight probing of the trial court." (Maple v. Cincinnati, Inc. (1985) 163 Cal.App.3d 387, 394, 209 Cal.Rptr. 451.) ⁵

                open to sight, hearing, and the other senses and thus subject to corroboration."   The Supreme Court also stated:  "This distinction between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved, ... has been the basic limitation on proof set by the leading decisions allowing jurors to impeach their verdicts.  [Citations.]"  (Id. at p. 349, 78 Cal.Rptr. 196, 455 P.2d 132.) 4
                

"In spite of the perception that, in recent times, the law concerning the ability of jurors to impeach a verdict has been liberalized, the process must be carefully scrutinized and controlled." (Maple v. Cincinnati, Inc., supra, 163 Cal.App.3d at p. 393, 209 Cal.Rptr. 451.) "In cases of a 'deliberative error' which appears to produce a mistaken or erroneous verdict, the result has almost invariably been to bar impeachment of the verdict." (People v. Romero (1982) 31 Cal.3d 685, 694, 183 Cal.Rptr. 663, 646 P.2d 824.)

In People v. Hall (1980) 108 Cal.App.3d 373, 379, 166 Cal.Rptr. 578, the appellate court rejected "appellant's theory that a mistake on the part of jurors constitutes misconduct which can be evidenced by the affidavits of the jurors themselves." (Italics in original, cited with approval in People v. Romero, supra, 31 Cal.3d at p. 695, 183 Cal.Rptr. 663, 646 P.2d 824.) The appellate court in Hall noted: "The courts have been firm ... in precluding affidavits which do no more than characterize the affiant's own state of mind [citation] or the state of mind of other members of the jury [citations]." (People v. Hall, supra, 108 Cal.App.3d at p. 380, 166 Cal.Rptr. 578.) In affirming an order striking juror declarations and denying a new trial, the appellate court in Hall stated: "The declarations which appellant sought to introduce simply asserted, in identical language, each juror's belief and intent at the time he or she signed the verdict. They made no reference to any objective events which might account for their asserted mistakes, much less to any objective evidence of misconduct. In short, they presented no admissible evidence of jury misconduct...." (Id. at pp. 380-381, 166 Cal.Rptr. 578.)

In Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 215 Cal.Rptr. 679, 701 P.2d 826, the defendant bank challenged a $2.1 million jury verdict for plaintiff. The bank submitted a declaration of a juror asserting the jury did not vote on the issue of the bank's liability, she did not agree to liability, and she voted for damages as a compromise because she thought liability "The applicable rule is explained in People v. Hutchinson, [supra], 71 Cal.2d 342 [78 Cal.Rptr. 196, 455 P.2d 132] ..., holding that Evidence Code section 1150 'prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent. The only improper influences that may be proved under section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.' (Id., at p. 350 [78 Cal.Rptr. 196, 455 P.2d 132].) [The juror's] declaration dealt only with jurors' mental processes and reasons for assent or dissent and was inadmissible for purposes of undermining the verdict. [Citations.]" (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 910, 215 Cal.Rptr. 679, 701 P.2d 826.)

had been decided and she felt employer pressure to return to work. In disallowing the bank's challenge to the verdict, the Supreme Court stated:

In Cove, Inc. v. Mora (1985) 172 Cal.App.3d 97, 100, 218 Cal.Rptr. 7, the trial court--relying on Krouse v. Graham, supra, 19 Cal.3d at pages 80-82, 137 Cal.Rptr. 863, 562 P.2d 1022--granted a defendant's motion for new trial "based on the declarations of jurors showing that the jury had unlawfully [awarded] compensatory damages on a nonexistent legal theory. [Citation.]" The appellate court reversed the order granting new trial. The appellate court agreed with the plaintiff's contention the declarations did not "set forth any overt, objectively verifiable acts or statements of any juror" but instead contained "only conclusional language on the collective mental process of the jury that purports to rationalize the basis for its supposedly erroneous verdict." (Cove, Inc. v. Mora, supra, 172 Cal.App.3d at p. 100, 218 Cal.Rptr. 7.)

B ANALYSIS

Citing Krouse v. Graham, supra, 19 Cal.3d at page 82, 137 Cal.Rptr. 863, 562 P.2d 1022, Ford asks us to vacate the order denying new trial and direct the trial court to admit the juror declarations. However, on this record a new trial is not warranted. Moreover, further inquiry into the juror's asserted confusion and misunderstanding of relevant law would simply constitute improper probing of the jurors' subjective mental processes. (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 910, 215 Cal.Rptr. 679, 701 P.2d 826, People v. Hutchinson, supra, 71 Cal.2d at pp. 349-350, 78 Cal.Rptr. 196, 455 P.2d 132; Maple v. Cincinnati, Inc., supra, 163 Cal.App.3d at p. 394, 209 Cal.Rptr. 451.)

The juror declarations proffered here do not meet the standards required by statute and case law. The declarations lack objective and verifiable incidents of juror misconduct. (De Vera v. Long Beach Pub. Transportation Co. (1986) 180 Cal.App.3d 782, 797, 225 Cal.Rptr. 789; Cove, Inc. v. Mora, supra, 172 Cal.App.3d at p. 103, 218 Cal.Rptr. 7; Ferreira v. Quik Stop Markets, Inc. (1983) 141 Cal.App.3d 1023, 1035, 190 Cal.Rptr. 778; People v. Hall, supra, 108 Cal.App.3d at pp. 380-381, 166 Cal.Rptr....