Villa v. City of Long Beach CA2/7 ( 2021 )

Filed 9/17/21 Villa v. City of Long Beach CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
FERMIN VILLA, B300054
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC518613)
v.
CITY OF LONG BEACH,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Patrick T. Madden, Judge. Affirmed.
Balaban & Spielberger, Daniel K. Balaban, and Andrew J.
Spielberger; Esner Chang & Boyer, Holly N. Boyer, and Shea S.
Murphy for Plaintiff and Appellant.
Charles Parkin, City Attorney, and Theodore B. Zinger,
Deputy City Attorney; Alderman & Hilgers and Allison R. Hilgers
for Defendant and Respondent.
INTRODUCTION
Fermin Villa sustained significant injuries when the driver
of a car he was a passenger in lost control of the car and hit a
200-pound decorative boulder, which caused the car to roll over.
After filing this action against the City of Long Beach for
allegedly creating and maintaining a dangerous condition by
placing the boulder in the median of the road, Villa went to trial
twice and lost both times. In the first trial, a jury returned a
verdict for the City, finding there was no dangerous condition.
After the trial court failed to disclose it had received a note from
a juror during deliberations about potential jury misconduct,
however, the court granted Villa’s motion for a new trial. The
City appealed, and we affirmed. (See Villa v. City of Long Beach
(Sept. 28, 2017, B268270) [nonpub. opn.] (Villa I).)
In the second trial, a jury again found there was no
dangerous condition. Villa again moved for a new trial—the
subject of this appeal—arguing that the jury engaged in
misconduct during deliberations and that counsel for the City
committed misconduct during closing argument. This time the
trial court denied the motion for a new trial. Villa appealed
again, arguing that, “in what appears to be an uncanny twist of
fate,” juror and attorney misconduct require a second reversal.
We conclude that the trial court did not err in denying
Villa’s second motion for a new trial and that Villa is not entitled
to a third trial. Therefore, we affirm.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Villa Sues the City After He Is Injured in a Car
Accident
On August 20, 2012 Carlos Arrieta was driving a car in
Long Beach. Villa was the passenger. As Arrieta drove on a
ramp connecting two streets, the car rolled over and landed on its
roof. Villa suffered injuries, including to his head and spine,
which required hospitalization, surgery, and rehabilitative care.
Villa subsequently sued the City for negligence and dangerous
condition of public property, alleging the accident occurred when
the car hit a boulder the City placed and maintained on the
ramp.
B. The Jury Finds in Favor of the City, but the Trial
Court Grants Villa’s Motion for a New Trial
The first trial commenced in June 2015. The City
presented evidence Arrieta had been drinking and driving
recklessly shortly before the accident, which occurred when
Arrieta was speeding and lost control of the car. Competing
traffic engineering experts for Villa and the City testified about
whether the ramp was in a dangerous condition. (Villa I, supra,
B268270.)
On the second day of jury deliberations, a juror submitted a
handwritten note to the clerk stating one of the other jurors was
“talking about what they know as engineer” and asking the court
to instruct the jurors again to decide the case based on the
evidence, not on their life experiences. The jury, however,
reached, and the trial court accepted, a verdict before the court
disclosed the note to counsel. The jury found in favor of the City,
3
voting nine to three the ramp was not a dangerous condition.
(Villa I, supra, B268270.)
Villa filed a motion for a new trial under Code of Civil
Procedure section 657,1 arguing that the court’s failure to disclose
the juror note was an irregularity in the proceeding and that
there was juror misconduct. Four jurors submitted declarations
stating that during deliberations the presiding juror repeatedly
commented about his experience as an engineer and said that,
based on his engineering experience, there was no problem with
the design of the ramp. The trial court granted Villa’s motion for
a new trial, ruling that the court’s failure to disclose the note to
counsel prior to taking the verdict was an “[i]rregularity in the
proceedings of the court by which [Villa] was prevented from
having a fair trial” for purposes of section 657, subdivision (1).
We affirmed the order granting a new trial. (Villa I, supra,
B268270.)
C. A Second Jury Finds in Favor of the City
1. Percipient Witnesses Testify About the Accident
At the second trial, Villa’s friend, Adrian Rayon, described
the events leading to the accident. Rayon said that Arrieta
started drinking at 1:00 p.m. and that he appeared intoxicated by
the evening. At 8:30 or 9:30 p.m., Villa, Arrieta, Rayon, and
Gregorio Aguilera went to the beach; Aguilera drove Rayon in one
car, and Arrieta drove Villa in another, a Mazda RX7. At a gas
station, Arrieta started drinking from a bottle of dark liquor.
Back on the road, Arrieta stopped at a red light and began doing
1 Undesignated statutory references are to the Code of Civil
Procedure.
4
“donuts,”2 at one point spinning off and hitting the curb.
Aguilera pulled his car up next to Arrieta’s car, and Rayon,
believing Arrieta was “obviously” drunk, told Arrieta to “stop
doing that” and “calm down.”
Arrieta sped away, with Aguilera following him. Five to 10
minutes later, as Arrieta approached the ramp, Rayon used his
phone to record Arrieta’s driving, thinking Arrieta might take the
ramp quickly. As Rayon was filming, Arrieta “sped off into the
curb and . . . flipped [the car] over” toward the passenger side.
A bus driver also witnessed the accident. He heard tires
“peeling out” and what sounded like brakes “burning out.” The
bus driver said he thought Arrieta’s car was going “too fast to be
coming up that ramp” and that, based on the direction of the car’s
headlights, the car was “drifting or fishtailing” and “sliding . . .
around the curve.” The bus driver saw Arrieta’s car hit the curb,
hit the boulder, and then roll over twice.
2. Villa’s Experts Testify the Ramp Was
Dangerous
Edward Stevens, Villa’s traffic engineering expert, testified
that there were no problems with the City’s design of the ramp
because the plans were almost “straight out of the California
Highway Design Manual for an onramp.” After conducting a
survey, however, Stevens determined the ramp was not
constructed as designed. In particular, he said that, while the
plans called for a 400-foot curve radius toward the end of the
ramp, the radius as constructed was closer to 118 feet. As
2 “Doing donuts” is a driving maneuver involving “driving
quickly in a tight circle” (Guest v. Hansen (2d Cir. 2010) 603 F.3d
15, 18), often in the middle of an intersection.
5
Stevens explained, “the curvature continues to be very sharp” at
the point where a driver would “begin to accelerate,” causing the
driver to “drift over to the left side” (and toward the curb where
the boulders were).
Stevens also testified that, in his opinion, there should
have been a “chevron sign”—a sign, usually in yellow and black,
with an arrow pointed to the right—on the ramp, to alert drivers
there was a sharp curve. Finally, Stevens testified that the
California Highway Design Manual required any fixed objects,
such as the boulders on the ramp, to be at least 18 inches from
the face of the curb and that the boulders served no traffic
engineering purpose.
Villa’s accident reconstruction expert, Thomas Green,
acknowledged the car was going approximately 40 miles per hour
when it hit the curb, which was well over the posted
recommended speed of 15 miles per hour. But according to Green
the critical speed at which the car would lose control and slide
was 45 miles per hour, and Arrieta’s car never reached that
speed. Green stated that the boulder was between six to 18
inches away from the curb when the car hit it and that it
“definitely” caused the car to roll.
3. The City’s Experts Testify It Was Not
The City’s traffic engineering expert, John Fisher,
disagreed with almost everything Stevens said. Fisher concluded
that the ramp conformed to the design plans and that the ramp
was not in a dangerous condition. He testified Stevens’s
methodology for measuring the curve radius was faulty because
6
Stevens did not measure enough points on the ramp to accurately
calculate the radii of the various compound curves in the ramp.3
Fisher testified the boulders were not unsafe because they
were not so large that they were unmovable—as demonstrated by
the fact that Arrieta’s car in fact dislodged the boulder into the
street—and because, in Fisher’s opinion, they were at least 30
inches away from the face of the curb. Fisher also testified that
there had been no reported accidents during the previous five
years involving a car crashing into the boulders or the area
around them. Finally, Fisher testified a chevron sign was not
necessary on the ramp because there were other traffic control
devices, including signs warning drivers of the ramp and curve
and recommending a speed of 15 miles per hour; yield signs
halfway up the ramp and at the end of the ramp; and a “high
visibility ladder style crosswalk” at the end of the ramp.
The City’s accident reconstruction expert, Stein Husher,
calculated that the critical speed on the ramp at which a car
would tend to slide was 36 miles per hour, not 45 miles per hour,
as Green had testified. Husher did not have an opinion on how
the car rolled over because he said there was not enough
information about how the car hit the curb. But Husher did state
that, in his opinion, the car “either rolled or tripped on the road
surface or the curb . . . before it impacted” the boulder.
4. The Jury Again Finds for the City
The first question on the special verdict form asked the
jury whether “the property [was] in a dangerous condition at the
3 According to Stevens, “compound curves are where two
curves meet that have different . . . radii . . . designed so that one
arc of a certain radius meets another arc of another radius.”
7
time of the accident.” The court instructed the jury a dangerous
condition of public property is one that “creates a substantial risk
of injury to members of the general public when the property is
used with reasonable care and in a reasonably foreseeable
manner.” During closing argument, counsel for the City showed
the jury a slide that defined “substantial” as “of ample or
considerable amount or quantity” (based on a dictionary
definition), and counsel argued substantial meant “frequently
going to happen.” Villa did not object.
On the second day of deliberations, the jury asked the
court to provide the “legal definition of substantial risk” for the
instruction on dangerous condition. In response to the jury’s
question, Villa asked the court to instruct the jury to disregard
any definition of “substantial risk” other than the definition
provided by the court and to give the jury the definition of
“dangerous condition” in Government Code section 830. (See
Gov. Code, § 830, subd. (a) [“‘Dangerous condition’ means a
condition of property that creates a substantial (as distinguished
from a minor, trivial or insignificant) risk of injury when such
property or adjacent property is used with due care in a manner
in which it is reasonably foreseeable that it will be used.”].) The
court agreed with Villa, instructed the jury that “statements of
law by counsel are not evidence,” and gave the definition of
“dangerous condition” in Government Code section 830.
On the fourth day of deliberations, the jurors advised the
court they were deadlocked on whether there was a dangerous
condition. The trial court ordered the jury to resume
deliberating. The next day, by a nine to three vote, the jury
returned a verdict in favor of the City, finding there was no
8
dangerous condition. The trial court entered judgment in favor of
the City.
D. Villa Again Files a Motion for a New Trial, Which
This Time the Trial Court Denies
Villa again filed a motion for a new trial under section 657,
subdivision (1), arguing both jury misconduct and attorney
misconduct. Villa submitted the declarations of two jurors,
Hector Velazquez and Leola Oliver. According to Jurors
Velazquez and Oliver, during deliberations two members of the
jury, Patrick Roselli and Kerry Oda, referred to themselves as
experts. Juror Roselli, a mechanical engineer, said (according to
Jurors Velazquez and Oliver) that based on his expertise and
mechanical engineering experience the accident could not have
happened the way Villa’s experts described. Juror Oda, who
(according to Jurors Velazquez and Oliver) referred to himself as
an “‘expert in high performance vehicles like the RX7,’” stated
that “‘the RX7 would fishtail because it was rear wheel drive’”
and that Villa’s experts were wrong. Jurors Velazquez and
Oliver also stated in their declarations that two jurors, Marci
Dusseau and Stacey Smith, made several improper comments,
including that the City could not afford to pay an award of
damages and taxes would increase if the jury awarded Villa
money damages; that Villa was suing the City because the driver
(Arrieta) had no insurance; and that the City should not have to
pay the fees of Villa’s attorneys, who would take 50 percent of
any damages award.
The City opposed the motion, submitting declarations from
four jurors: Roselli, Dusseau, Mira Patel, and Katrina Anne
Schutte. Juror Roselli admitted telling the other jurors he was a
9
mechanical engineer, but denied he ever referred to himself as an
expert or expressed any opinion based on his expertise or
mechanical engineering experience. And none of the four jurors
recalled either Juror Roselli or Juror Oda stating that, based on
his personal experience or expertise, he did not believe the
plaintiff’s experts, or offering any other opinion based on his
personal experience.
Juror Dusseau denied ever mentioning taxes, insurance, or
attorneys’ fees, or making a similar comment. And none of the
four jurors remembered Juror Dusseau, Juror Smith, or any
other juror making similar comments.
The trial court denied the motion. Regarding the jury
misconduct argument, the court ruled that the declarations “do
not establish prejudicial misconduct by the jurors.” Regarding
the attorney misconduct argument, the court ruled counsel for
the City’s use of a dictionary definition for the term “substantial”
was misconduct. The court ruled, however, that Villa did not
timely object to the misconduct during closing argument and that
the misconduct was not prejudicial because the court gave a
curative instruction during deliberations and none of the six
jurors stated the dictionary definition ever came up during
deliberations. Villa timely appealed from the judgment.
10
DISCUSSION
A. The Trial Court Did Not Err in Denying Villa’s
Motion for a New Trial Based on Jury Misconduct
1. Applicable Law and Standard of Review
“A trial court undertakes a three-step process to evaluate a
motion for new trial based on juror misconduct” under section
657. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270,
278.) “The trial court must first determine whether the
declarations supporting the motion are admissible under
Evidence Code section 1150.[4] Second, if all or part of the
declarations are admissible, the trial court determines whether
the facts establish misconduct. If the trial court finds misconduct
occurred the trial court then determines whether the misconduct
was prejudicial.” (Hernandez, at p. 278; see Barboni v. Tuomi
(2012) 210 Cal.App.4th 340, 345 (Barboni).) Villa, as the moving
party, “bears the burden of establishing juror misconduct.”
(Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th
567, 625; see Barboni, at p. 349 [“the burden of establishing juror
misconduct lies with the party moving for a new trial”].)
“On review from a trial court’s ‘determin[ation of] whether
misconduct occurred, “[w]e accept the trial court’s credibility
determinations and findings on questions of historical fact if
supported by substantial evidence.”’” (Barboni, supra,
4 The trial court excluded portions of declarations that
reflected either how the deliberations influenced jurors to agree
to the verdict or the jurors’ mental processes. (See Evid. Code,
§ 1150, subd. (a).) Villa does not challenge the court’s evidentiary
rulings.
11
210 Cal.App.4th at p. 345; accord, Hernandez v. First Student,
Inc, supra, 37 Cal.App.5th at p. 278; Stokes v. Muschinske (2019)
34 Cal.App.5th 45, 53.) Where, as here, “the motion for new trial
[is] a battle of the declarations,” it is “‘the trial court that must
assess the credibility of affiants or declarants, and the trial court
is entitled to believe one over the other.’” (Toste v. CalPortland
Construction (2016) 245 Cal.App.4th 362, 372-373.) “[T]he
appellate court defers to the trial court’s factual findings and
independently assesses prejudice.” (Id. at p. 373.)
The trial court’s ruling the declarations did “not establish
prejudicial misconduct” is ambiguous: It could mean the trial
court found no misconduct, no prejudice, or neither misconduct
nor prejudice. Relying on this ambiguity, Villa argues that,
because the trial court did not expressly find there was no
misconduct, we must conduct “an independent review of whether
misconduct occurred.” That is not the law.
Where, as here, the trial court denies a motion for a new
trial supported by declarations, we view the declarations “in the
light most favorable to the [prevailing party]” (Gordon v. Gordon
(1954) 126 Cal.App.2d 481, 486) and “assume . . . the trial court
impliedly resolved [any evidentiary] conflicts in favor of the
prevailing party” (Andrews v. County of Orange (1982)
130 Cal.App.3d 944, 957, disapproved on another ground in
People v. Nesler (1997) 16 Cal.4th 561 582, fn. 5]; see Young v.
Brunicardi (1986) 187 Cal.App.3d 1344, 1350-1351 [“[t]he
determination by a trial court of a motion for a new trial
submitted on affidavits which present conflicting facts is a
determination of those controverted facts in favor of the
prevailing party”]). Where the trial court’s order “‘is against the
party who has the burden of proof, . . . unless the trial court
12
makes specific findings of fact in favor of the losing plaintiff, we
presume the trial court found the plaintiff’s evidence lacks
sufficient weight and credibility to carry the burden of proof.
[Citations.] We have no power on appeal to judge the credibility
of witnesses or to reweigh the evidence.’” (Patricia A. Murray
Dental Corp. v. Dentsply Internat., Inc. (2018) 19 Cal.App.5th
258, 270; accord, Bookout v. State of California ex rel. Dept. of
Transportation (2010) 186 Cal.App.4th 1478, 1486.) Viewing the
declarations and resolving conflicts in the light most favorable to
the City, we conclude Villa did not prove any of the jurors
engaged in misconduct.
2. Villa Did Not Show Juror Misconduct
a. Juror Roselli
In his declaration Juror Roselli stated he told the other
jurors that he was an engineer, that he did not believe the ramp
was in a dangerous condition, and that he did not find Villa’s
experts’ version of the accident plausible. As discussed, however,
Juror Roselli stated that he never said he was an expert or that
he was giving an expert opinion. To the contrary, Juror Roselli
said he told the other jurors, “I am definitely not a Civil Engineer
or an accident reconstructionist and that is not my field.”
None of Juror Roselli’s statements evidenced misconduct.
As the Supreme Court has held: “All the jurors, including those
with relevant personal backgrounds, [are] entitled to consider
[the] evidence and express opinions regarding it . . . . [I]f we
allow jurors with specialized knowledge to sit on a jury, and we
do, we must allow those jurors to use their experience in
evaluating and interpreting that evidence. Moreover, during the
13
give and take of deliberations, it is virtually impossible to divorce
completely one’s background from one’s analysis of the evidence.
We cannot demand that jurors, especially lay jurors not versed in
the subtle distinctions that attorneys draw, never refer to their
background during deliberations.” (People v. Steele (2002)
27 Cal.4th 1230, 1266; accord, People v. Loker (2008) 44 Cal.4th
691, 753; see In re Malone (1996) 12 Cal.4th 935, 963 [“It is not
improper for a juror, regardless of his or her educational or
employment background, to express an opinion on a technical
subject, so long as the opinion is based on the evidence at trial.”].)
While a ‘“juror may not express opinions based on asserted
personal expertise that is different from or contrary to . . . the
evidence’” (People v. Allen and Johnson (2011) 53 Cal.4th 60, 77),
Juror Roselli denied the assertions by Jurors Velazquez and
Oliver that he (Juror Roselli) said he was an expert and that his
opinions were based on his engineering background. And Jurors
Dusseau, Patel, and Schutte all stated they did not recall any
juror referring to himself or herself as an expert or expressing an
opinion based on special knowledge. Accepting, as we must,
Juror Roselli’s and the other jurors’ version of events, there was
no misconduct on the part of Juror Roselli.
Juror Roselli admitted in his declaration he told the other
jurors he “did not believe a car going a reasonable speed, 20 to 25
miles per hour, would have had a substantial risk of rolling over.”
In his reply brief, Villa asserts this statement must have been
“expert opinion” because there was no evidence at trial to support
it.
Except that there was. Both Green, Villa’s accident
reconstruction expert, and Husher, the City’s accident
reconstruction expert, agreed that the critical speed—the speed
14
at which “the centrifugal forces on the car can no longer be
contained by the tire forces if the tire is in contact with the
roadway”—was at least 36 miles per hour (i.e., more than 20 to
25 miles per hour). Stevens, Villa’s traffic engineering expert,
agreed there were no safety problems with the ramp’s design, and
Fisher, the City’s traffic engineering expert, testified the ramp as
constructed conformed with the design. Fisher testified that the
boulders in the median—the objects that Villa claimed caused the
car to flip—were at least 30 inches from the curb, which was a
greater distance than required by the California Highway Design
Manual. There had been no similar accidents on the ramp during
the past five years. And Fisher opined that, considering all of its
characteristics, the ramp was “not a dangerous condition” and
that there was “no substantial risk of harm if you’re driving
prudently and safely and adhering to the . . . traffic control
devices.” All of this evidence supported an inference that a car
going 20 to 25 miles per hour on the ramp would not have a
substantial risk of rolling over. (See I-CA Enterprises, Inc. v.
Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 291 [“The jury
is entitled ‘to make any logical and reasonable deduction’ from
the evidence before it.”]; Kawamura v. Honek (1932) 127 Cal.App.
509, 511 [“‘in construing and applying testimony, reasonable
inferences and deductions may be made by the jury, and
conclusions may be reached that lie quite beyond the mere letter
of the evidence’”].)
b. Juror Dusseau
As did Juror Roselli, Juror Dusseau denied she made the
allegedly improper statements attributed to her by Jurors
Velazquez and Oliver. Juror Dusseau stated she never said that
15
the City would not be able to pay a judgment, that a verdict for
Villa would cause taxes to increase, or that Villa’s lawyer would
take 50 percent of any damages award. She also stated that she
did not make “any comments similar to those” and that she did
not understand how any of her comments “could have been
misconstrued.” Jurors Roselli, Patel, and Schutte all agreed they
did not recall any juror making any similar comments. Again,
accepting Juror Dusseau’s version of events, confirmed by Jurors
Roselli, Patel, and Schutte, there was no misconduct here.
c. Juror Oda
Juror Oda did not submit a declaration in opposition to the
motion for a new trial denying the statements attributed to him
by Jurors Velazquez and Oliver. Villa asserts that Juror Oda’s
misconduct was therefore “unrefuted.” Not true.
According to Jurors Velazquez and Oliver, Juror Oda
referred to himself as an expert in high performance vehicles and
said the accident could not have occurred as Villa’s expert
described because the Mazda RX7 was “‘low to the ground,’”
“‘powerful,’” and had “‘rear wheel drive.’” While Juror Oda did
not rebut the statements by Jurors Velazquez and Oliver, Jurors
Roselli, Dusseau, Patel, and Schutte all stated they did not recall
Juror Oda referring to himself as an expert. Nor did any of these
four jurors recall Juror Oda expressing opinions that were not
based on the evidence admitted at trial. Juror Roselli
remembered Juror Oda “worked on high performance vehicles,”
but he did not recall Juror Oda saying that, based on his
experience working with high performance cars, Villa’s experts
were wrong. Juror Patel remembered Juror Oda worked with
cars, but did not remember Juror Oda stating that, based on his
16
experience, Villa’s experts were wrong, nor did Juror Patel
remember Juror Oda expressing an opinion “based on
information [the jurors] had not heard at trial.” Juror Schutte
confirmed that none of the jurors, including Juror Oda, expressed
an opinion “other than to discuss [the juror’s] own interpretation
of the testimony and evidence.” And Juror Dusseau did not
remember Juror Oda saying anything about cars, other than it
would have been helpful to know more about the car involved in
the accident.
In his reply brief, Villa appears to argue the statements by
Jurors Roselli, Dusseau, Patel, and Schutte, that they did not
“recall” Juror Oda’s alleged misconduct, did not refute the
statements by Jurors Velazquez and Oliver that the misconduct
occurred. Again, Villa is incorrect. In Barboni, supra,
210 Cal.App.4th 340 the plaintiff made essentially the same
argument after the trial court denied her motion for a new trial
based on juror misconduct, arguing the failure of five jurors to
recall an allegedly improper discussion during deliberations did
“not mean such discussion did not happen.” (Id. at p. 350.) As
the court in Barboni explained, this type of argument “misses
several important points, including the standard of review on
appeal and the fact that it was [the moving party’s] burden to
establish misconduct, not the [opposing party’s] burden to
establish that it did not occur.” (Ibid.) Here, too, it was Villa’s
burden to establish that Juror Oda made the allegedly improper
statements. That only two of the 12 jurors corroborated the
statements, and four jurors did not recall them, shows it was not
“unrefuted” that Juror Oda said something improper. Viewing
the evidence in the light most favorable to the court’s order, we
must assume he did not.
17
There was one statement by Juror Oda that the City
arguably did not rebut. According to Juror Velazquez, Juror Oda
told Juror Velazquez while they were having lunch that he (Juror
Oda) “did everything to get out of there,” including telling the
judge that he could not be fair and that he worked “on high
performance stuff” and “would not be a good juror.” According to
Villa, this showed that Juror Oda concealed bias during voir dire
examination.
But even assuming Juror Oda made these comments, they
were not sufficient to show bias that would have precluded him
from serving on the jury. “‘[T]he concealment during voir dire of
a bias, belief or state of mind which prevents a juror from
following the court’s instructions and acting in an impartial
manner constitutes misconduct.’” (Stokes v. Muschinske, supra,
34 Cal.App.5th at p. 52; see Tapia v. Barker (1984)
160 Cal.App.3d 761, 765.) “‘“[W]hether a juror is biased in this
regard [is] within the discretion of the trial court.”’” (Stokes, at
p. 53; see People v. San Nicolas (2004) 34 Cal.4th 614, 644.)
Juror Oda’s statements suggested he did not want to serve
on the jury, which standing alone does not show impermissible
bias. (See Stokes v. Muschinske, supra, 34 Cal.App.5th at p. 54
[juror’s statement that he had a “big problem” with the time
required to serve on the jury and the judge’s observation that the
juror was “about ready to jump through the front of the jury box”
did not show bias].) Nor did the fact that Juror Oda knew about
cars. (See People v. Steele, supra, 27 Cal.4th at p. 1266 [jurors
with “relevant personal backgrounds” are entitled to consider
evidence and express opinions].) And regardless of Juror Oda’s
statements he was not “fair” and not a “good juror,” he did not
say he had prejudged the case, would refuse to consider the
18
evidence, harbored any animus toward Villa, or was not able to
be impartial and follow the judge’s instructions.
d. Juror Smith
Like Juror Oda, Juror Smith did not submit a declaration
to rebut the statements attributed to her by Jurors Velazquez
and Oliver. But again, the declarations of Jurors Roselli,
Dusseau, Patel, and Schutte rebutted the evidence of purported
misconduct. Each of these four jurors did not recall anyone
making comments about Arrieta not having insurance, taxes
increasing if the City had to pay a judgment, or Villa’s attorneys’
fees.5
B. The Trial Court Did Not Err in Denying Villa’s
Motion for a New Trial Based on Attorney Misconduct
The trial court ruled counsel for the City committed
misconduct by using a dictionary definition of “substantial” when
describing a dangerous condition of property as one that creates a
substantial risk of injury. The court ruled, however, the
misconduct did not cause any prejudice.
“‘Attorney misconduct is an irregularity in the proceedings
and a ground for a new trial’” under section 657, subdivision (1).
(Jackson v. Park (2021) 66 Cal.App.5th 1196, 1213; see Garcia v.
ConMed Corp. (2012) 204 Cal.App.4th 144, 148.) But as with
juror misconduct, “‘[i]t is not enough for a party to show attorney
misconduct. In order to justify a new trial, the party must
5 Because Villa did not show there was misconduct, we need
not independently review the record to determine whether the
alleged misconduct, assuming it occurred, caused prejudice. (See
Barboni, supra, 210 Cal.App.4th at p. 351.)
19
demonstrate that the misconduct was prejudicial.’” (Jackson, at
p. 1216; see Martinez v. Department of Transportation (2015)
238 Cal.App.4th 559, 568; Garcia, at p. 149.)
“In determining whether [attorney] misconduct was
prejudicial, ‘a reviewing court makes “an independent
determination as to whether the error was prejudicial.”’”
(Jackson v. Park, supra, 66 Cal.App.5th at p. 1216; see Pilliod v.
Monsanto Co. (2021) 67 Cal.App.5th 591, 631; Garcia v. ConMed
Corp., supra, 204 Cal.App.4th at p. 149.) “The court ‘must
determine whether it is reasonably probable [that the [party
asserting misconduct occurred]] would have achieved a more
favorable result in the absence of that portion of [attorney
conduct] now challenged.’” (Jackson, at p. 1216; see Garcia, at
p. 149.) In making this determination, “we evaluate the following
factors: ‘(1) the nature and seriousness of the misconduct; (2) the
general atmosphere, including the judge’s control of the trial;
(3) the likelihood of actual prejudice on the jury; and (4) the
efficacy of objections or admonitions under all the
circumstances.’” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th
276, 296; see Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311,
320-321.)
Here, even if counsel for the City committed misconduct by
using an improper definition of “substantial,” none of the factors
supports a finding of prejudice.6 The alleged misconduct was, at
6 We assume without deciding Villa did not forfeit his
argument counsel for the City committed misconduct by failing
initially to object during closing argument. (See Rayii v. Gatica
(2013) 218 Cal.App.4th 1402, 1411-1412 [“A party ordinarily
cannot complain on appeal of attorney misconduct at trial unless
the party timely objected to the misconduct and requested that
the jury be admonished.”].)
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best, minor. Counsel for the City described a substantial risk as
one that is “frequently going to happen” or one of “ample or
considerable amount or quantity.” This did not significantly
modify or add much to the definition in Government Code section
830, which defines substantial risk only as one “distinguished
from a minor, trivial, or insignificant” risk. (See Ford v. City of
Los Angeles (2020) 47 Cal.App.5th 277, 289-290 [no attorney
misconduct where, during closing argument, counsel used “‘heck
of a lot’” to define “substantial factor,” rather than defining the
term as a factor that was more than remote or trivial].) And
counsel for the City’s comment “was fleeting, comprising just two
sentences” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780,
802-803), in an otherwise lengthy closing argument. (See id. at
p. 803 [no prejudice given the “brevity and obliqueness of the
challenged comments”].)
Moreover, there was little to no likelihood of actual
prejudice in light of the trial court’s admonition to the jury during
deliberations. “‘“It is only in extreme cases that the court, when
acting promptly and speaking clearly and directly on the subject,
cannot, by instructing the jury . . ., correct the impropriety of the
act of counsel and remove any effect his conduct or remarks
would otherwise have.”’” (Sabella v. Southern Pac. Co., supra,
70 Cal.2d at p. 318; accord, Janice H. v. 696 North Robertson,
LLC (2016) 1 Cal.App.5th 586, 604; see Rayii v. Gatica (2013)
218 Cal.App.4th 1402, 1412 [“Attorney misconduct is incurable
only in extreme cases.”].) When the jury asked the trial court for
a definition of substantial risk, the trial court gave the correct
definition and, at counsel for Villa’s request, instructed the jury
that statements of law by counsel are not evidence. That was
sufficient. (See Ford v. City of Los Angeles, supra, 47 Cal.App.5th
21at pp. 289-290 [“potential jury confusion” from counsel’s use of
“‘heck of a lot’” to define “substantial factor” was “cured by the
court’s thorough instructions to the jury”].)
Villa argues the jury’s question during deliberations, and
the declarations submitted by the jurors, indicated that several
jurors were confused about the definition of substantial risk.
True, the jurors may have struggled with how to apply a legal
concept to the facts in this case, but that does not show that the
City’s argument confused the jury or that it is reasonably
probable Villa would have obtained a more favorable verdict in
the absence of counsel’s comment. Indeed, Jurors Velazquez and
Oliver confirmed that, even after receiving and reading the
judge’s instruction based on Government Code section 830, the
jurors still had trouble applying “substantial risk” to the facts.
And none of the jurors who submitted declarations, including
Jurors Velazquez and Oliver, stated that any juror brought up
counsel for the City’s brief mention of the term “substantial”
during closing argument.7
7 According to Jurors Velazquez and Oliver, Juror Smith told
jurors to “forget” about the judge’s instruction on substantial risk
when they were having trouble applying it to the facts. But the
other four jurors who submitted declarations did not recall Juror
Smith saying this, and as discussed, we resolve evidentiary
conflicts in favor of the court’s order. In any event, evidence of
Juror Smith’s purported statements does not show counsel’s brief
comment caused the confusion or resulted in prejudice.
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DISPOSITION
The judgment is affirmed. The City is to recover its costs
on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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