Jones v. Sieve

• Decision Date: 29 July 1988
• Docket Number: No. B032222,B032222
• Citation: 249 Cal.Rptr. 821,203 Cal.App.3d 359
• Court: California Court of Appeals Court of Appeals
• Parties: Justin JONES, etc., et al., Plaintiffs and Appellants, v. Richard SIEVE, et al., Defendants and Appellants.

Page 821

249 Cal.Rptr. 821

203 Cal.App.3d 359

Justin JONES, etc., et al., Plaintiffs and Appellants, v. Richard SIEVE, et al., Defendants and Appellants.

No. B032222.

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

July 29, 1988.

Rankin, Oneal, Center, Luckhardt & Lund, Mark G. Hyde, Edward A. Hinshaw and Tyler G. Draa, San Jose, for defendants and appellants.

Dennis D. Olson, San Jose, for plaintiffs and appellants.

DANIELSON, Acting Presiding Justice.

Richard Sieve, M.D. ("Dr. Sieve") appeals from an order granting a new trial and an order denying a motion to reconsider the order granting a new trial, and for relief under Code of Civil Procedure section 473. ¹ Justin Jones ("Justin") and Kimberly Jones ("Justin's mother"; collectively, "plaintiffs") have cross-appealed ² from the judgment and the order denying a motion for judgment notwithstanding the verdict.

PROCEDURAL AND FACTUAL STATEMENT

The first cause of action of the first amended complaint alleged that Justin, a minor, was born on December 30, 1981, and suffered permanent personal injuries, including blindness and brain damage, through the negligence of Dr. Sieve. In the second cause of action Justin's mother sought damages for personal injuries to herself arising from Dr. Sieve's alleged negligence in treating her. In the remaining cause of action Justin's mother sought damages based on her witnessing of Justin's birth and his personal injuries. Dr. Sieve answered the complaint on April 29, 1983, by denying its material allegations and by asserting five affirmative defenses.

During trial, the jury was instructed to return separate special verdicts regarding each plaintiff as to six specific issues. The first issue asked the jury to determine whether Dr. Sieve was negligent. The second asked the jury to determine whether such negligence was the legal cause of that plaintiff's injuries. The third through sixth issues involved damages.

On May 29, 1985, the jury returned the following special verdicts: The jury found Dr. Sieve negligent as to each plaintiff, but found such negligence not to be the legal cause of plaintiffs' injuries. The issues concerning damages, which were thus moot, were not addressed by the jury. Judgment was then awarded to Dr. Sieve and against plaintiffs.

Plaintiffs were served with notice of entry of judgment by mail on June 21, 1984.

On July 8, 1985, plaintiffs filed a notice of intention to move for a new trial on the issues of legal cause and damages on the ground of jury misconduct, insufficiency of evidence, irregularity in proceedings, and legal error. On that date plaintiffs also filed a motion for judgment notwithstanding the verdict.

As evidentiary support, plaintiffs supplied the affidavit of Julie Shine, one of the twelve jurors ("Juror Shine"). Juror Shine described certain events of jury misconduct which occurred during jury deliberations.

In his written opposition, Dr. Sieve objected to the affidavit on the grounds it was argumentative, conclusionary, vague, and inadmissible.

Following a hearing, the motions were submitted. On August 16, 1985, the court granted the motion for a new trial on the issues of legal cause and damages on the ground of jury misconduct only. The court expressly rejected the remaining grounds as meritless. The court summarily denied the motion for judgment notwithstanding the verdict.

On August 27, 1985, Dr. Sieve filed a motion under section 1008 for reconsideration of the order granting a new trial, for permission to file counter-declarations of other jurors under section 473, and upon reconsideration to "re-enter" judgment for Dr. Sieve based on such new evidence.

Dr. Sieve's attorney stated in his declaration that he had failed to submit counter-declarations earlier, because he had believed Juror Shine's declaration to be inadmissible. As further evidentiary support, Dr. Sieve filed the declarations of five of the eleven remaining jurors.

In their opposition plaintiffs took the position, inter alia, that the court had lost jurisdiction to rule on the motion to reconsider the order granting a new trial.

On October 15, 1985 the court denied the motion on the ground of lack of jurisdiction. The court pointed out that the sixty day period for ruling on a motion for new trial expired on August 20, 1985 while the motion for reconsideration had not been filed until August 27, 1985.

I. Appeal Contentions

Dr. Sieve initially claims the trial court abused its discretion in granting the motion for a new trial. He argues "the law requires, at a minimum, presentation of the actual statements constituting the misconduct which reveal, on their face, prejudice to the aggrieved party, no matter how weak that prejudice may be (other than the mere fact of the verdict itself), before the burden shifts to the prevailing party to rebut[ ] the evidence presented." He contends the affidavit of Juror Shine was deficient in that regard, because it "vaguely relate[d] impressions of or conclusions regarding events of misconduct without any showing whatsoever of prejudice to" plaintiffs. He also urges this court to independently review the record to determine whether prejudice actually exists. As authority, he cites Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 185 Cal.Rptr. 654, 650 P.2d 1171. He next asserts that the order granting a new trial is not supported by any of the other grounds specified by plaintiffs.

Alternatively, Dr. Sieve complains the trial court erred in denying his motion for reconsideration of its order granting motion for a new trial, and for relief under section 473, on the ground of lack of jurisdiction. He requests the matter be remanded with directions for the trial court to consider the motion on the merits.

DISCUSSION ON APPEAL BY DR. SIEVE

I. Order Granting New Trial

"Upon appellate review of an order granting a new trial, 'all intendments are in favor of the action taken by the lower court [and] the affidavits in behalf of the prevailing party are deemed not only to establish the facts directly stated therein, but all facts reasonably inferred from those stated.' [Citation.]" (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 106, 95 Cal.Rptr. 516, 485 P.2d 1132.) Moreover, " 'it is well [established] that the granting of a motion for a new trial rests so completely within the discretion of the trial judge that an appellate court will not interfere with his action unless a manifest and unmistakable abuse of discretion clearly appears. [Citations.]' [Citation.]" ( Id. at p. 109, 95 Cal.Rptr. 516, 485 P.2d 1132.)

From our review of the record we find no abuse of discretion regarding the granting of a new trial on the ground of jury misconduct. Based on Juror Shine's affidavit the court found two instances of jury misconduct from which a presumption of prejudice arose since they were not of a trifling nature ³ but, instead, concerned the merits of the subject under deliberation by the jury. The first concerned Juror Villas who discussed and described to the jury her own personal experiences with the condition of preeclampsia, one of the basic subjects of the instant medical malpractice action. The second involved Juror Robinson who had consulted a reference for the definition of terms that were the subject of deliberation and then explained to the jury her understanding thereof based upon that outside reference.

On the issue of prejudice the court found plaintiffs failed to show any specific prejudice other than to point to the jury verdict; however, based on Smith v. Covell (1980) 100 Cal.App.3d 947, 161 Cal.Rptr. 377 the court concluded this omission was of no legal import inasmuch as the burden was on the prevailing party to show the misconduct to be harmless. The court then found Dr. Sieve had failed to carry this burden by producing the counter-declaration of any juror to show the misconduct was harmless.

It is in this context that we address Dr. Sieve's first contention, i.e., the law requires "presentation of the actual statements constituting the misconduct which reveal, on their face, prejudice to the aggrieved party, ... before the burden shifts to the prevailing party to rebut[ ] the evidence presented." We reject this recitation as a misstatement of the law.

Jury misconduct need not be established solely from the "actual statements" made. "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." (Evid.Code, § 1150, subd. (a).) In other words, a verdict may be impeached by proof of any overt act, which is objectively ascertainable, i.e., "open to sight, hearing, and the other senses and thus subject to corroboration." (People v. Hutchinson (1969) 71 Cal.2d 342, 349, 350, 78 Cal.Rptr. 196, 455 P.2d 132.)

In the present instance it was the conduct of the jurors that was at issue, not the content of any statements made. (Cf. Weathers v. Kaiser Foundation Hospitals, supra, 5 Cal.3d 98, 110, 95 Cal.Rptr. 516, 485 P.2d 1132 (statements of two jurors evidenced prejudgment and actual bias); Clemens v. Regents of University of California (1971) 20 Cal.App.3d 356, 361-363, 97 Cal.Rptr. 589 (statements of a juror showed substantial bias and prejudice and prejudgment of issues).) Exactly what was said by the jurors was not critical. The crucial facts of overt acts showing misconduct established by Juror Shine's affidavit were the fact that Juror Villas communicated to the other jurors her own experience concerning a pivotal issue and the fact Juror Robinson defined a relevant term by reference to an outside source in place of the evidence produced at trial. "Jurors cannot, without violation of their oath, receive or communicate to fellow jurors information from sources outside the evidence in the case. [Citati...