Mesecher v. County of San Diego, No. D014082

CourtCalifornia Court of Appeals
Writing for the CourtWIENER
Citation12 Cal.Rptr.2d 279,9 Cal.App.4th 1677
PartiesLucy Gilcrest MESECHER, Plaintiff and Respondent, v. COUNTY OF SAN DIEGO et al., Defendants and Appellants.
Docket NumberNo. D014082
Decision Date01 October 1992

Page 279

12 Cal.Rptr.2d 279
9 Cal.App.4th 1677
Lucy Gilcrest MESECHER, Plaintiff and Respondent,
v.
COUNTY OF SAN DIEGO et al., Defendants and Appellants.
No. D014082.
Court of Appeal, Fourth District, Division 1, California.
Oct. 1, 1992.

Page 280

[9 Cal.App.4th 1680] Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy Counsel, David Florance and Ricky Sanchez, Deputy County Counsel, for defendants and appellants.

Backes & Friesen, Peter G. Friesen, Karl E. Sorenson and Marie Backes, San Diego, for plaintiff and respondent.

WIENER, Acting Presiding Justice.

The defendants San Diego County and San Diego County Deputy Sheriff David Hawkins 1 appeal the judgment entered on the jury's verdict awarding plaintiff Lucy Mesecher damages of $114,880. As we shall explain we reject County's claim of jury misconduct, concluding the declarations from six jurors are inadmissible to impeach the verdict under Evidence Code section 1150, subdivision (a). We also conclude reversal is not required even though we agree with County that the separate jury verdicts on Mesecher's causes of action for battery and federal civil rights violation are inconsistent. We decide County's tactical decision to submit potentially conflicting questions for the jury to answer on the special verdict constitutes a waiver of County's right to assert prejudice on this ground. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I

Mesecher, a criminal defense attorney, was at the county jail with other defense attorneys to appear on behalf of a client for a superior court video [9 Cal.App.4th 1681] arraignment. Because the arraignment was unexpectedly delayed Mesecher left the arraignment room early to avoid being late for another court appearance. When she reached the visitor's exit, she was not allowed to leave because she did not have appropriate identification. Jail personnel rejected her explanation that she had been in video arraignments and her offer to accompany the officers to the arraignment room so they could verify her story. During her return to the video arraignment room, she encountered Hawkins.

Viewed in the light most favorable to Mesecher on her battery cause of action and consistent with her testimony, the jury found Hawkins twisted Mesecher's arm behind her back, administered a compliance hold and forced her to the ground. The jury awarded Mesecher damages of $114,880 for this tortious conduct.

Hawkins' testimony directly contradicted Mesecher's on the nature and extent of the force he used. Hawkins explained he was only attempting to guide Mesecher from a restricted area when she became hysterical and uncontrollable. Hawkins expressly denied throwing Mesecher to the ground or twisting her arm.

II

At trial the liability issue presented to the jury was whether the force used by Hawkins constituted a battery and/or a violation of Mesecher's civil rights under 42 United States Code section 1983. 2 Accordingly the court instructed the jury on both theories. The court explained to the jury Hawkins could lawfully use force against Mesecher, but County would be liable for battery or a civil rights violation if such force were unreasonable or excessive. 3

Page 281

Even though the jury instructions for battery and civil rights violation were phrased differently the jury was asked to decide the identical question--whether Hawkins used excessive force--in order to determine County's liability.

[9 Cal.App.4th 1682] The verdict form, prepared jointly by the parties, asked the jury two questions on the battery and civil rights causes of action respectively: "1. Was any intentional, unlawful and harmful contact made upon the person of Lucy Mesecher? 2. Was excessive force used in detaining Lucy Mesecher?"

The jury answered "yes" to question 1 pertaining to the battery cause of action and "no" to question 2 on the civil rights violation.

The jury responded to the third question on the extent of damages Mesecher suffered as a result of the improper conduct by awarding her $114,880. The court later denied County's motions for a new trial on the battery cause of action and/or judgment notwithstanding the verdict.

DISCUSSION
I
JURY MISCONDUCT

County's principal argument is that because of jury misconduct the court was required to grant its new trial motion on the battery cause of action.

Shortly after trial, County sent a letter to each of the jurors, asking them to "describ[e] the jury deliberations and the results reached." Six jurors responded, each reciting in narrative form how they and the other jurors reached their conclusions on the battery cause of action. Although each juror's style was different, with respect to the issue here the contents of the declarations were essentially the same. The jurors said that during deliberations they, and other jurors, defined a "battery" as contact which is intentional or unlawful or harmful or offensive. This definition conflicted with [9 Cal.App.4th 1683] the court's instruction, which provided a battery "is any intentional, unlawful and harmful or offensive contact by one person with the person of another." (Emphasis added.) According to the declarations, a majority of the jurors relied on the juror definition to conclude Hawkins committed the battery because he intended to have contact with Mesecher, even though the jurors did not think the contact was harmful, unlawful or offensive.

County submitted the six declarations in support of its new trial motion. (See Code Civ.Proc., § 657.) County contended, as it does here, the jurors' misstatements of the law on battery constituted prejudicial misconduct requiring the court to grant a new trial. We conclude the declarations are inadmissible to impeach the verdict.

While "jurors may testify to 'overt acts'--that is, such statements, conduct, conditions, or events as are 'open to sight, hearing, and the other senses and thus subject to corroboration'--[they] may not testify to 'the subjective reasoning processes

Page 282

of the individual juror ...' (People v. Hutchinson, [ (1969) 71 Cal.2d 342] at pp. 349-350, 78 Cal.Rptr. 196, 455 P.2d 132.)'' (In re Stankewitz (1985) 40 Cal.3d 391, 398, 220 Cal.Rptr. 382, 708 P.2d 1260; see Evid.Code, § 1150, subd. (a). 4 ) Likewise, evidence about a jury's "subjective collective mental process purporting to show how the verdict was reached" is inadmissible to impeach a jury verdict. (Ford v. Bennacka (1990) 226 Cal.App.3d 330, 336, 276 Cal.Rptr. 513, first emphasis added.) Thus, juror declarations are inadmissible where, as here, they "at most suggest 'deliberative error' in the jury's collective mental process--confusion, misunderstanding, and misinterpretation of the law." (Ibid.; accord People v. Romero (1982) 31 Cal.3d 685, 694, 183 Cal.Rptr. 663, 646 P.2d 824; People v. Hall (1980) 108 Cal.App.3d 373, 379, 166 Cal.Rptr. 578.)

County attempts to avoid the impact of these rules by focusing on the fact that several of the jurors communicated their misunderstanding of the instructions during deliberations. However, "[t]he subjective quality of one juror's reasoning is not purged by the fact that another juror heard and remembers the verbalization of that reasoning." To hold otherwise would destroy the rule ... which clearly prohibits the upsetting of a jury verdict by assailing these...

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  • Drink Tank Ventures LLC v. Soda (In re in Real Bottles, Ltd.), B298881, consolidated with B302215
    • United States
    • California Court of Appeals
    • 10 Noviembre 2021
    ...Saxena v. Goffney (2008) 159 Cal.App.4th 316, 328-329, 71 Cal.Rptr.3d 469 ; 286 Cal.Rptr.3d 348 Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686, 12 Cal.Rptr.2d 279 ; Elisalda v. Welch's Sand & Gravel Co. (1968) 260 Cal.App.2d 46, 51-52, 67 Cal.Rptr. 57.) And althoug......
  • Aguilar v. Avis Rent-A-Car System, Inc, RENT-A-CAR
    • United States
    • California Court of Appeals
    • 21 Mayo 1996
    ...is estopped to assert this point because defense counsel herself proposed this very language. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685, 12 Cal.Rptr.2d 279.) Avis claims another portion of the injunction, ordering the company not to make Hispanic/Latino employees the ......
  • Alamo v. Practice Mgmt. Info. Corp., No. B230909.
    • United States
    • California Court of Appeals
    • 23 Enero 2013
    ...the lawyer may not use that tactical decision as the basis to claim prejudicial error.” ( Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686, 12 Cal.Rptr.2d 279.) [14] In this case, it is clear that PMIC invited the purported error as a matter of trial strategy. The record refl......
  • Estrada v. Fedex Ground Package System, No. B189031.
    • United States
    • California Court of Appeals
    • 13 Agosto 2007
    ...Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1166-1167, 112 Cal. Rptr.2d 540; Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686,12 Cal.Rptr.2d In a related argument, FedEx contends the class "never proved to be ascertainable or manageable in any rea......
  • Request a trial to view additional results
190 cases
  • Drink Tank Ventures LLC v. Soda (In re in Real Bottles, Ltd.), B298881, consolidated with B302215
    • United States
    • California Court of Appeals
    • 10 Noviembre 2021
    ...Saxena v. Goffney (2008) 159 Cal.App.4th 316, 328-329, 71 Cal.Rptr.3d 469 ; 286 Cal.Rptr.3d 348 Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686, 12 Cal.Rptr.2d 279 ; Elisalda v. Welch's Sand & Gravel Co. (1968) 260 Cal.App.2d 46, 51-52, 67 Cal.Rptr. 57.) And althoug......
  • Aguilar v. Avis Rent-A-Car System, Inc, RENT-A-CAR
    • United States
    • California Court of Appeals
    • 21 Mayo 1996
    ...is estopped to assert this point because defense counsel herself proposed this very language. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685, 12 Cal.Rptr.2d 279.) Avis claims another portion of the injunction, ordering the company not to make Hispanic/Latino employees the ......
  • Alamo v. Practice Mgmt. Info. Corp., No. B230909.
    • United States
    • California Court of Appeals
    • 23 Enero 2013
    ...the lawyer may not use that tactical decision as the basis to claim prejudicial error.” ( Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686, 12 Cal.Rptr.2d 279.) [14] In this case, it is clear that PMIC invited the purported error as a matter of trial strategy. The record refl......
  • Estrada v. Fedex Ground Package System, No. B189031.
    • United States
    • California Court of Appeals
    • 13 Agosto 2007
    ...Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1166-1167, 112 Cal. Rptr.2d 540; Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686,12 Cal.Rptr.2d In a related argument, FedEx contends the class "never proved to be ascertainable or manageable in any rea......
  • Request a trial to view additional results

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