Sansen v. Aerojet Rocketdyne CA3 ( 2021 )

Filed 11/29/21 Sansen v. Aerojet Rocketdyne CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
STEVE SANSEN, C091073
Plaintiff and Respondent, (Super. Ct. No. 34-2015-00175120)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING
AEROJET ROCKETDYNE, INC.,
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on November 4, 2021, be modified as follows:
1. The third sentence on page 1, ending on page 2, is deleted and the following sentence
is inserted in its place:
Jurors then quickly returned a defense verdict – without further discussion and
without looking at any of the exhibits introduced during trial.
1
2. On page 19, the following paragraph is added after the paragraph constituting
subsection B, entitled “Forfeiture,” and immediately preceding section V, entitled
“Denial of Motion for Reconsideration”:
In its petition for rehearing, Aerojet asserts that it did cite where in the
record Sansen invited the jury to consider their personal experience with unions.
Aerojet refers us to a portion of the opening brief containing a recitation of the
facts without identifying any particular fact as supporting the assertion of invited
error. This portion of the opening brief, however, does not support the argument.
“The factual portion of appellants’ opening brief does contain citations to
evidence. However, such citations do not cure the failure to cite evidence in the
argument section of the brief, and we will not pick and choose the portions of the
brief in the statement of facts that we may think are applicable to each assertion in
the argument. [California Rules of Court,] [r]ule 8.204(a)(1)(C) is intended to
enable the reviewing court to locate relevant portions of the record ‘without
thumbing through and rereading earlier portions of a brief.’ (City of Lincoln [v.
Barringer] [(2002)] 102 Cal.App.4th [1211,] 1239, fn. 16.) To provide record
citations for alleged facts at some points in a brief, but not at others, frustrates the
purpose of that rule, and courts will decline to consider any factual assertion
unsupported by record citation at the point where it is asserted. (Ibid.)” (Alki
Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590, fn. 8,
italics added.) Moreover, Aerojet’s argument on invited error in the opening brief
does not directly tie to this portion of the statement of facts or any specific citation
to the record.
2
There is no change in the judgment. Appellant’s petition for rehearing is denied.
FOR THE COURT:
/s/
RAYE, P. J.
/s/
HULL, J.
/s/
HOCH, J.
3
Filed 11/4/21 Sansen v. Aerojet Rocketdyne CA3 (unmodified opinion)
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
STEVE SANSEN, C091073
Plaintiff and Respondent, (Super. Ct. No. 34-2015-
00175120)
v.
AEROJET ROCKETDYNE, INC.,
Defendant and Appellant.
This wrongful termination of employment case was tried to a jury over the course
of 10 days and culminated in a defense verdict on all five causes of action asserted by
Steve Sansen against Aerojet Rocketdyne, Inc. (Aerojet). In a motion for new trial,
Sansen introduced evidence that deliberations began with three jurors proclaiming that
their own experiences established that Sansen’s claims had no merit because his union
was not at the trial to support him. Jurors then returned a defense verdict within 15
minutes – without further discussion and without looking at any of the exhibits
1
introduced during trial. The trial court found that at least four jurors engaged in
misconduct and granted the motion for new trial. Aerojet subsequently moved for
reconsideration, but the trial court determined it lacked jurisdiction to hear the motion
more than 75 days after notice of entry of judgment. Aerojet appeals.
On appeal, Aerojet argues (1) the trial court erroneously relied on inadmissible
evidence to find juror misconduct, (2) jurors in this case did not actually engage in
misconduct, (3) Sansen was not prejudiced by the jury misconduct, (4) there was no juror
misconduct because Sansen “invited jurors to draw on their union experience and is
barred from benefitting from his own voluntary act,” and (5) the trial court erred in
denying Aerojet’s motion for reconsideration.
We conclude that Aerojet has not preserved the arguments regarding inadmissible
evidence or invited error. Substantial evidence supports the trial court’s finding that at
least four jurors engaged in misconduct by substituting their own personal experience for
the evidence introduced at trial. The jury misconduct was prejudicial. And, the trial
court correctly determined it lacked jurisdiction to hear Aerojet’s motion for
reconsideration. Accordingly, we affirm the order granting Sansen’s motion for a new
trial and denying Aerojet’s motion for reconsideration.
FACTUAL AND PROCEDURAL HISTORY
Jury Trial
Both parties presented testimony and documentary evidence during a highly
contested 10-day jury trial. During trial, Sansen presented evidence that he was a
dedicated Aerojet employee who was terminated for taking time off to care for his wife
and his own health when he developed serious medical issues. Sansen testified that he
started working as a janitor at Aerojet at the age of 18. Over the course of almost three
decades, Sansen secured promotions by working on various projects involving multiple
aspects of rocket building, production of pharmaceutical drugs, cleanup of hazardous
2
materials, and refrigeration for rocket components. Sansen generally worked 48 hours
per week and was available on a “moment’s call” at any time during the day or night.
In January 2012, Sansen’s wife was involved in an automobile accident. Sansen’s
wife developed major complications from her serious injuries and required surgery that
was originally scheduled for December 2012. The surgery was postponed several times
to June 2013. To care for his wife, Sansen used a combination of vacation days, unpaid
time off, and sick leave. Aerojet disciplined Sansen for taking vacation days to care for
his wife in June 2013 when she had her surgery. In December 2013, Aerojet suspended
Sansen for three days on grounds that he had “missed or been late 11 times in the last
rolling six months.” During the disciplinary meeting, Sansen was informed by an Aerojet
human resources analyst that he could apply for retroactive leave under the Family and
Medical Leave Act of 1993 (29 U.S.C. § 2601 et seq.) (FMLA). Aerojet facilities
manager Stephen Hill also attended the meeting. Sansen testified that Hill “seemed very
disturbed by that, and as he took his hand and he hit the table and said, This is not FMLA.
He’s already tried that.” Hill insisted, “This discipline will stick. It will not be
retroactive.” After returning to work from his suspension, Sansen applied for retroactive
coverage for medical and family leave.
On February 13, 2014, Sansen experienced pain due to a hernia as well as
symptoms of anxiety and panic related to occupational stress. He informed his supervisor
and his union representative before leaving early. Later that day, Sansen received a
telephone call informing him that Hill considered him to be absent without leave. To
Sansen, this mirrored his experience on a day when his wife was in the intensive care unit
after surgery. That day Sansen received a knock on his door from two Aerojet
employees. Sansen thought they were there to console him on his wife’s medical
condition, but they instead told him that he was absent without leave. Sansen informed
them that he had received express approval for time off. The two Aerojet employees
responded, “Well, we didn’t know that.”
3
Although Sansen was scheduled to return on February 17, 2014, he was still
experiencing stomach pain and thought he had a hernia. Sansen’s wife called his
supervisor at Aerojet to explain that Sansen was in too much pain to come in to work.
Sansen remained off from work for several weeks. During that time he was scheduled for
hernia surgery and an appointment with the psychiatric department.
In a letter dated March 13, 2014, Aerojet informed Sansen that his leave was
unapproved and required medical certification. The letter stated that Sansen’s absence
occurred after a “series of events.” In February 2014, Sansen requested sick leave to care
for his wife. He tendered a note from the treating physician stating that Sansen’s wife
was scheduled for surgery and that this required he care for their child. Aerojet informed
him that leave was not available under the FMLA to care for a healthy child. Sansen
walked out on a disciplinary meeting on February 13, 2014, saying that he was feeling
overwhelmed by his wife’s illness and pain that might be a hernia. Sansen’s wife called
on his behalf, saying that he was incoherent and would not be at work that day or the
next.
After February 18, 2014, Sansen failed to call in or contact his supervisor
regarding his absence. Aerojet contacted Sansen on March 3, 2014, to verify whether he
had sent his medical certification. During the conversation, Sansen acknowledged
receiving the forms but not yet filling them out. The call was disconnected and Sansen
did not pick up when Aerojet called him back. Aerojet stated that it had not received any
medical documentation regarding his leave of absence. Aerojet informed Sansen that his
continued failure to provide medical documentation resulted in his request for leave
under the FMLA and California’s Moore-Brown-Roberti Family Rights Act (CFRA)
(Gov. Code, § 12945.2) being denied pending receipt of adequate medical certification.
The letter admonished that if medical documentation was not received by March 18,
2014, Aerojet would consider the absence a “voluntary termination.” (Underscoring
omitted.)
4
At trial, Sansen’s counsel elicited testimony from Aerojet employees to show that
Aerojet had no record of providing him with the documents necessary to claim FMLA
leave prior to February 11, 2014. Sansen explained that he was not even at work on that
date. Aerojet’s personnel file for Sansen contained no indication of a February 11, 2014,
meeting even though the company’s operating procedures required documentation of
personnel meetings. Sansen testified that the first time he received a request from
Aerojet for medical documentation for his FMLA leave was on March 17, 2014.
Sansen attempted to comply with the letter’s demand for medical documentation
but was unable to secure the documentation by the short deadline imposed in the letter.
He took the letter to Kaiser, his medical provider. Kaiser stated that there was a delay in
producing the documentation. Sansen testified that he “was strictly seeking leave for
[his] wife and only [his] wife,” and not to take care of their child. On March 18, 2014,
Sansen discussed the matter on a telephone call with an Aerojet benefits analyst. Sansen
detailed his efforts to get documentation. The Aerojet benefits analyst made a note that
“[h]e can work on getting the medical certification completed.” Sansen testified that he
was told, “[Y]es, you know, I will give you some more time to complete these.”
On March 20, 2014, Sansen received an express mail letter informing him that
Aerojet had terminated his employment the prior day on March 19, 2014. The letter
stated that Sansen had previously been asked for medical certification in a prior letter
dated March 12, 2014. Sansen, however, denied ever receiving a request for medical
documentation prior to March 17, 2014. A Kaiser representative testified that it could
have provided a doctor’s note to cover back to the time that he left the workplace on
February 13, 2014.
Aerojet presented evidence on its own behalf show that Sansen concluded a
disciplinary meeting with Aerojet by walking off the job, refusing to return to work for
undocumented medical conditions, and refusal to confirm his claims of medical leave.
Aerojet facilities manager Hill testified that he instituted a series of improvements to
5
operations at the company starting in October 2012. Sansen, however, resisted the
changes and failed to comply with the requirements of his job. Hill informed Sansen of
his frustration that Sansen would not follow the new rules or even those imposed through
collective bargaining with Sansen’s union. By December 2013, Sansen had engaged in a
number of rule violations that “added up” to grounds for suspension.
Hill was aware that Sansen’s wife needed brain surgery and had sympathy for
Sansen. Hill’s own wife had needed brain surgery for a tumor. Sansen’s discipline was
not based on his request for leave under the FMLA. To the contrary, Hill told Sansen
that if his absences were based on the need to care for his wife that the leave was
potentially covered under the FMLA. Hill understood that FMLA leave could be claimed
retroactively.
Hill attended the disciplinary meeting with Sansen on December 9, 2013, and
February 13, 2014. In addition to Hill and Sansen, John Eldeen (a steward with Sansen’s
union), and Myra Makelim (an Aerojet human resources employee) attended the
December 9, 2013, meeting. Aerojet provided information that Sansen had been late or
absent 11 times in the prior six months. During the meeting, there was a discussion of
the FMLA, and how Sansen might apply retroactively for FMLA leave. Eldeen said that
he would help Sansen with the FMLA claim form. Sansen brought up the issue of his
wife’s brain surgery. Aerojet suspended Sansen for three days without pay.
Hill further testified that he attended the February 13, 2014, disciplinary meeting
but did not remember Sansen leaving before the conclusion of the meeting. Makelim
testified that Sansen did not provide the required medical documentation to support his
FMLA claims. She recalled a telephone conversation with Sansen in which he stated that
he “was unable to provide documentation” for missed work after February 13, 2014.
Sansen was terminated from employment in what was “considered a voluntary
termination.” Makelim summarized, “Basically that he quit.”
Jurors returned a defense verdict on all causes of action.
6
Judgment and Posttrial Motions
The trial court entered judgment on the jury’s verdict, and Aerojet served notice of
entry of judgment on August 6, 2019. Sansen moved for a new trial and for judgment
notwithstanding the verdict. In support of the motion for new trial, Sansen submitted the
declarations of Jurors C.B., K.B., and G.G. Juror C.B. explained that the jury entered the
deliberation room, and before any voting or discussion began, Juror L.B. “strongly and
with great conviction” made statements to all jurors. Juror C.B. declared that Juror L.B.
then stated “that she was a union steward and had been in a union for years. She said
based upon her experience and knowledge of how unions operate, if Mr. Sansen was
wrongfully terminated, his union would have been at the trial supporting him. She stated
that if he had a case, ‘the union would have had his back,’ but no one from his union
showed up. She said, ‘my own union would have been here showing support.’ Based on
her experience, and knowledge of unions [L.B.] said Mr. Sansen had no case.”
Juror C.B. further recounted that “Jurors [B.H.] and [C.S.] agreed with [L.B.] and
talked about their own experience and knowledge of unions in support of [L.B.’s]
statements and assessment of the case based upon her experience with and knowledge of
unions. [B.H.] and [C.S.] both said they also had experience with unions and knowledge
of how unions operate. They both stated that if Mr. Sansen had a case his union would be
supporting him, but no one from his union showed up.” Juror C.B. queried, “ ‘what does
this have to do with this case?’ ” But this comment received no response from other
jurors.
After Jurors L.B., B.H., and C.S. made their statements about their personal
experiences with how unions operate “and how the lack of union support showed Sansen
did not have a case,” jurors shared some cookies. Jurors “then started to quickly vote.”
Juror C.B. stated, “There was very little discussion regarding each of our votes. During
this voting process I did not see anyone looking at the exhibits, and I did not see or hear
7
anyone referencing any of the jury instructions during our voting on the questions in the
verdict form.”
Juror K.B. submitted a declaration with a similar recount of what transpired in the
deliberation room. She declared, “At the start of our approximately one hour of
deliberations, [L.B.], juror number 8, forcefully declared that she had extensive
experience and background with unions and was a union steward, and that unions always
support an employee who loses his or her job if the termination was wrongful, and the
fact that Mr. Sansen did not have union support at the trial shows that his case was not
valid or strong. Two other jurors, [B.H.] and [C.S.] spoke up and told us that they agree
with [L.B.] based upon their own union experience and knowledge. Both [B.H.] and
[C.S.] said they agreed that since Mr. Sansen failed to have any union witness testifying
in his support that his case was not valid. . . . Not much discussion followed those
comments and we voted without looking at the exhibits.”
Juror G.G. echoed the other two jurors’ declarations. She noted that after Jurors
L.B., B.H., and C.S. gave their assessments based on their own personal experiences that
“we settled in, had some cookies and picked a foreperson in 5-10 minutes. We then
started to quickly vote. I did not look at the exhibits, and I only saw one person briefly
look at the exhibits. I did not, and I did not see anyone else, look at the jury instructions.
There certainly was no discussion regarding the instructions or exhibits.”
Aerojet opposed Sansen’s posttrial motions. On October 18, 2019, the trial court
granted the motion for new trial based on juror misconduct. The trial court found that at
least four jurors decided the matter on evidence not presented at trial and that their failure
to follow jury instructions constituted a separate ground of misconduct. The trial court
denied the motion for new trial and for judgment notwithstanding the verdict as to
Sansen’s arguments that the evidence did not support the verdict.
On October 21, 2019, Aerojet moved for reconsideration of the trial court’s order
granting a new trial. Aerojet submitted declarations from two jurors to show that no
8
misconduct had occurred. After a hearing, the trial court denied the motion for
reconsideration on grounds that the court lacked jurisdiction to grant the motion. The
trial court explained that it lost jurisdiction with the passage of 75 days after the filing of
the first notice of intention to move for a new trial. Aerojet thereafter timely appealed the
granting of the motion for new trial and denial of the motion for reconsideration.
DISCUSSION
I
Admissibility of Evidence Showing Juror Misconduct
Aerojet argues that the trial court committed reversible error because it
erroneously considered inadmissible evidence of juror misconduct. We conclude that
Aerojet has not preserved the argument for review.
A.
The Trial Court Granted Aerojet’s Evidentiary Objections
In opposing the motion for a new trial based on juror misconduct, Aerojet objected
to portions of the declarations submitted by Jurors C.B., K.B., and G.G. Aerojet argued
these portions of the declarations that related to jurors’ mental processes were
inadmissible. Relating to C.B.’s declaration, Aerojet objected to his statement: “I could
see from nods of heads and statements of affirmation by the other jurors that these
statements by [L.B.], [B.H.,] and [C.S] impacted and were accepted by many other
jurors.” Aerojet also objected to C.B.’s statement: “My comment resulted in no response
or sign of agreement from any of the other jurors.” This comment referenced by Juror
C.B. was his question to other jurors about what L.B., B.H., and C.S.’s personal
experiences with unions “ ‘have to do with this case?’ ”
With respect to Juror K.B.’s declaration, Aerojet objected to her statement:
“These comments and expertise influenced my decision to vote in favor of Aerojet.”
Juror K.B.’s statement referenced comments related to Jurors L.B., B.H., and C.S.’s
personal experiences with unions.
9
Aerojet argued that the trial court should exclude the declaration of Juror G.G.,
where she stated: “As a result of these strong statements from these people experienced
with unions I voted against Mr. Sansen.” As did Jurors C.B. and K.B., Juror G.G.
referred to the comments made by Jurors L.B., B.H., and C.S. about their personal
experience with union representation.
The trial court agreed with Aerojet and therefore sustained Aerojet’s objections
exactly as presented in the opposition to the motion for a new trial.
B.
Aerojet Presents New Evidentiary Arguments on Appeal
On appeal, Aerojet argues that “most of [Sansen’s] evidence is inadmissible.”
(Italics added.) Specifically, Aerojet argues that the trial court should have excluded
evidence regarding the jurors’ review of exhibits and jury instructions, length of
deliberations, timing of statements by jurors, and that L.B. spoke “ ‘forcefully.’ ” These
arguments have not been preserved for appellate review because they were not first
presented in the trial court.
When an argument challenges the admission of evidence, a lack of objection in the
trial court is fatal to appellate review. Thus, “ ‘[a] party desiring to preserve for appeal a
challenge to the admission of evidence must comply with the provisions of Evidence
Code section 353, which precludes reversal for erroneous admission of evidence unless:
“There appears of record an objection to or a motion to exclude or to strike the evidence
that was timely made and so stated to make clear the specific ground of the objection or
motion.” ’ [Citation.]” (People v. Ramos (1997) 15 Cal.4th 1133, 1171.) Evidence Code
section 353’s requirement to preserve evidentiary issues by timely objections includes
issues related to the relevancy of evidence. (Faigin v. Signature Group Holdings, Inc.
(2012) 211 Cal.App.4th 726, 749.) Consequently, Aerojet has not preserved the
evidentiary challenges it seeks to raise for the first time on appeal.
10
We are not persuaded by Aerojet’s reliance on Evidence Code section 1150 to
argue that its objection was “automatically preserved” and must be “reviewed de novo.”
Subdivision (a) of section 1150 of the Evidence Code 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.”
Evidence Code section 1150 does not help Aerojet because Aerojet could have,
but did not, raise the relevancy objections to the jurors’ declarations that it now seeks to
challenge on appeal. Even aside from Evidence Code section 353, an argument must
generally be presented in the trial court before it can be raised on appeal. “ ‘ “ ‘An
appellate court will ordinarily not consider procedural defects or erroneous rulings, in
connection with relief sought or defenses asserted, where an objection could have been
but was not presented to the [trial] court by some appropriate method . . . . The
circumstances may involve such intentional acts or acquiescence as to be appropriately
classified under the headings of estoppel or waiver . . . . Often, however, the explanation
is simply that it is unfair to the trial judge and to the adverse party to take advantage of an
error on appeal when it could easily have been corrected at the trial.’ [Citation.]”
[Citations.] [¶] Moreover, it would be inappropriate to allow a party not to object to an
error of which the party is or should be aware, “ ‘thereby permitting the proceedings to
go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if
not.’ [Citation.]” [Citation.]’ ” (In re Carrie W. (2003) 110 Cal.App.4th 746, 755.)
Here, Aerojet could have presented its relevancy argument in the trial court. We
conclude Aerojet has not preserved the issue for appeal.
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II
Juror Misconduct
Aerojet argues that the trial court erred in determining that Jurors L.B., B.H., and
C.S. engaged in misconduct because (1) the “trial court cited no case that supports its
conclusion,” (2) “jurors did not refuse to deliberate,” (3) the trial court “relied on
inadmissible evidence,” and (4) “[t]he jurors said nothing about [Sansen’s] ‘union
representative.’ ”
As to the first contention, the trial court is not required to cite authority in granting
a motion for a new trial. (See Code Civ. Proc., § 660, subd. (c) [requiring only that the
order be entered in the permanent minutes of the court or signed by the judge and filed
with the clerk].) To the extent this contention challenges whether jurors’ actions in this
case constituted misconduct, we address the contention below. As to the second
contention, we conclude that jurors’ reliance on evidence not presented at trial constituted
misconduct regardless of whether they deliberated about the evidence or not. As to the
third contention, we have already rejected Aerojet’s attempt to raise issues regarding
admissibility of the evidence for the first time on appeal. And, as to the fourth
contention, we conclude that the trial court’s order granting a trial order accurately
describes the evidence submitted by Sansen to show juror misconduct.
A.
Trial Court Ruling
The trial court determined that Jurors L.B., B.H., and C.S. committed misconduct
by (1) interjecting new evidence based on their personal experiences rather than relying
on evidence presented at trial, and (2) ignoring jury instructions requiring the jury not to
consider as evidence anything seen or heard outside of court. In making this
determination, the trial court rejected Aerojet’s argument that Jurors L.B., B.H., and C.S.
“were simply bringing their personal experience to bear as they assessed the evidence –
or lack thereof.”
12
The trial court found that “Jurors [L.B.], [B.H.,] and [C.S.] were not assessing the
evidence presented at trial. Instead, they interjected new evidence: their purported
outside knowledge of the ‘fact’ a union representative is always present at a trial when a
plaintiff has a valid claim. The three jurors brought new evidence to the jury deliberation
not presented at trial, stressing their expertise on union practices and forcefully stated
their opinions based upon the new evidence they presented.” (Second italics added.)
Thus, the trial court found that “this clearly meets the standard for juror misconduct.”
The trial court further determined that this consideration of facts not related to the
evidence presented at trial constituted juror misconduct in the form of failure to follow
the jury instructions given. As the trial court found, “The statements of jurors [L.B.],
[B.H.,] and [C.S], interjecting new evidence purportedly based upon their special training
and experience with unions and announcing their decision without deliberating was
misconduct in violating the jury instructions.”
The trial court rejected as irrelevant Aerojet’s assertion that Jurors L.B., B.H., and
C.S. disclosed their union backgrounds during jury voir dire. The trial court explained,
“In accepting jurors with background on the issues to be presented [at trial], [Sansen] did
not ‘assume the risk’ those jurors will violate the court’s instructions and impermissibly
draw on that background to interject new evidence into the deliberations.”
B.
Jury Misconduct
Jurors commit misconduct when they rely on evidence not presented at trial in
reaching a verdict. “A ‘rogue juror’ is someone who, in a mischievous way, wanders
apart from fellow jurors, does not follow the court’s instructions, and violates the juror’s
oath. (See CACI No. 100.) This undermines the integrity of trial by an impartial jury.
Such a juror may not vote or influence other jurors based upon asserted expertise on a
matter not in evidence at trial. This is juror misconduct which raises a presumption of
prejudice.” (Nodal v. CalWest Rain, Inc. (2019) 37 Cal.App.5th 607, 609 (Nodal).)
13
Thus, a juror may not “ ‘discuss an opinion explicitly based on specialized information
obtained from outside sources. Such injection of external information in the form of a
juror’s own claim to expertise or specialized knowledge of a matter at issue is
misconduct.’ ” (Id. at p. 611, quoting In re Malone (1996) 12 Cal.4th 935, 963.)
Sharing improper information about evidence not presented at trial with other
jurors constitutes juror misconduct. (In re Hamilton (1999) 20 Cal.4th 273, 294.)
“ ‘Presentation to or reception by a jury of new evidence from sources outside the trial
evidence constitutes misconduct.’ (McDonald v. Southern Pacific Transportation Co.
(1999) 71 Cal.App.4th 256, 263 (McDonald).) McDonald is instructive on the issue of
misconduct. There, the plaintiff, a brakeman at a transfer yard, was struck by a train
while sitting in his truck guarding a grade crossing and sued his employer alleging it was
negligent for failing to place crossing gates at the location. (Id. at pp. 259-261.) The
court found juror misconduct when a juror, who was a professional transportation
consultant, interjected the subject of sensors, on which there had been no evidence at
trial, and commented on the feasibility of installing crossing gates during jury
deliberations. (Id. at pp. 262, 267.)” (Whitlock v. Foster Wheeler, LLC (2008) 160
Cal.App.4th 149, 161.)
In assessing a challenge to an order granting a new trial based on jury misconduct,
we accept the trial court’s findings of fact when supported by substantial evidence but
independently assess whether the found facts constitute jury misconduct. (Nodal, supra,
37 Cal.App.5th at p. 610; Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905,
912.)
C.
Prejudicial Misconduct
Aerojet argues that Jurors L.B., B.H., and C.S. did not commit misconduct by
commenting on Sansen’s failure to call a union witness because jurors are allowed to
consider each party’s ability to provide evidence. Although jurors may consider a party’s
14
ability to produce evidence, they commit misconduct when they base a verdict on
evidence not introduced at trial. (Hansen v. Warco Steel Corp. (1965) 237 Cal.App.2d
870, 878.) Here, the essence of the misconduct was that jurors decided the case on a fact
not in evidence, namely that unions always provide support at trial in every case in which
a union employee has a meritorious claim. Jurors L.B., B.H., and C.S. substituted the
entirety of the evidence introduced at trial for their personal experiences with unions.
Jurors L.B., B.H., and C.S. compounded their misconduct by violating the trial
court’s instructions not to discuss with other jurors a fact not in evidence. (People v.
Hord (1993) 15 Cal.App.4th 711, 721, 725.) This kind of jury “misconduct gives rise to
a presumption of prejudice, which ‘may be rebutted . . . by a reviewing court’s
determination, upon examining the entire record, that there is no substantial likelihood
that the complaining party suffered actual harm.’ ” (People v. Leonard (2007) 40 Cal.4th
1370, 1425, quoting People v. Hardy (1992) 2 Cal.4th 86, 174.)
On the question of prejudice, “the Supreme Court has stated that in criminal cases
reversal is required ‘[w]hen the misconduct in question supports a finding that there is a
substantial likelihood that at least one juror was impermissibly influenced to the
defendant's detriment.’ (People v. Marshall (1990) 50 Cal.3d 907, 951; accord, In re
Malone [(1996)] 12 Cal.4th [935,] 964.) The test is an objective one, calling for inquiry
as to whether the misconduct ‘ “is inherently likely to have influenced the juror.” ’
(People v. Marshall, supra, at p. 951.) This analysis of prejudice ‘is different from, and
indeed less tolerant than,’ normal harmless error analysis, because jury misconduct
threatens the structural integrity of the trial. (Ibid.) Although stated in criminal cases,
this rationale applies to civil cases as well, because civil litigants too are constitutionally
entitled to a fair trial before an unbiased jury.” (McDonald v. Southern Pacific
Transportation Co. (1999) 71 Cal.App.4th 256, 265-266.)
In a civil case, however, a showing that a single juror improperly decided a case
does not constitute prejudice because a civil verdict may rest on the votes of three-
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quarters of jurors. (Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 322
(Glage).) Thus, “in civil cases, where the court finds a ‘substantial likelihood’ that
enough jurors were impermissibly influenced by misconduct to have affected the verdict
to the detriment of the complaining party, there is ‘reasonable probability of actual harm
to the complaining party resulting from the misconduct.’ ” (Id. at pp. 322-323, fn.
omitted.)
The trial court properly concluded that Jurors L.B., B.H., and C.S. committed
misconduct by deciding the case based on their personal experiences instead of the
evidence introduced at trial. These jurors’ improper injection of their own personal
experiences was also misconduct in that they communicated their personal experiences as
facts to the other jurors. We also agree with the trial court that the misconduct was
prejudicial.
The trial court found that “[t]hree jurors separately stated, based on their purported
expertise with unions, [Sansen’s] union had concluded there was no merit to his claims
and thus he was not entitled to damages. The prejudice to [Sansen] is further supported
by the fact the other jurors did not look at the exhibits or have any substantive discussion
on the case beyond what jurors [L.B.], [B.H.,] and [C.S.] stated. [¶] Based on the
foregoing, and in viewing the misconduct within the record as a whole, the court finds
[Sansen] has established by a preponderance of the evidence acts of juror misconduct
which prevent him from having a fair trial. (See Tapia v. Barker (1984) [1]60
Cal.App.3d 761, 765.) The court finds there is a substantial likelihood at least one juror
was impermissibly influenced to [Sansen’s] detriment by the misconduct of jurors [L.B.],
[B.H.,] and [C.S.], and thus the integrity of the trial was undermined.” Thus, the trial
court made a factual finding that at least four jurors improperly relied on facts not
introduced as evidence in order to decide on the verdict. Here, misconduct by four or
more of the twelve jurors invokes the presumption of prejudice. (Glage, supra, 226
Cal.App.3d at p. 322.)
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We are not persuaded by Aerojet’s assertion that the record rebuts the presumption
of prejudice. Aerojet argues that the matter is one of degree: the evidence was “weak,”
jurors’ misconduct was not “serious,” and the jurors’ verdict was not likely affected by
the misconduct. We reject the assertion the trial court erred in determining the jury
misconduct to have been prejudicial based on the finding that “ ‘at least one juror’ was
impermissibly influenced by purported misconduct.” Here, the trial court found that at
least four jurors made their decision based on the personal experiences announced by
Jurors L.B., B.H., and C.S. This finding is well supported by declarations of three jurors.
Each of the three declarant jurors agreed that Jurors L.B., B.H., and C.S. expressly
addressed the verdict based on facts not in evidence. The rest of the jurors then voted
without deliberation or examination of any exhibits after hearing the personal experiences
of Jurors L.B., B.H., and C.S. These facts support the trial court’s express finding that at
least four jurors improperly based their votes on the unadmitted evidence.
A decision by jurors that is based on facts not admitted at trial undermines the
very essence of their duties to hear the evidence at trial and decide based on the evidence
admitted at trial. (Nodal, supra, 37 Cal.App.5th at p. 609.) Here, at least four jurors
substituted personal experiences of jurors for testimonial and documentary evidence
presented at trial. This misconduct was serious and prejudicial because the verdict was
based on matters the jurors were expressly instructed not to consider. The trial court
properly concluded the jury misconduct was prejudicial.
D.
Whether the Trial Court Made an Erroneous Finding Regarding the Lack of a Union
Representative
Aerojet argues that the trial court erred in finding that Jurors L.B., B.H., and C.S.
said “that if [Sansen] had a case then ‘his union representative’ would have been at trial
. . . .” (Italics added.) We agree that the declarant jurors did not use the phrase “union
representative” in describing the statements of Jurors L.B., B.H., and C.S. However, the
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trial court’s findings were entirely consistent with the gist of the declarant jurors’
statements and there was no error in its factual findings.
In his declaration, Juror C.B. recounted Juror L.B. as saying that “based upon her
experience and knowledge of how unions operate, if Mr. Sansen was wrongfully
terminated, his union would have been at the trial supporting him. She stated if he had a
case, ‘the union would have had his back,’ but no one from his union showed up. She
said, ‘my own union would have been here showing support.’ Based on her experience,
and knowledge of unions [L.B.] said Mr. Sansen had no case.” Juror K.B. added that
Jurors “[B.H.] and [C.S.] said they agreed that since Mr. Sansen failed to have any union
witness testifying in his support, that his case was not valid.” Juror G.G. echoed that she
heard Juror L.B. say that “if Mr. Sansen was wrongfully terminated then his union would
have been at the trial supporting him. If he had a case, ‘the union would have had his
back,’ but no one from his union showed up.”
We recognize that “union representative” can sometimes be used as a term of art.
(See Amalgamated Transit Union, Local 276 v. San Joaquin Regional Transit Dist.
(2019) 36 Cal.App.5th 1, 7 & fn. 3.) In this case, however, the trial court appears to have
meant “union representative” to refer to a person who would be sent by Sansen’s union to
appear at trial on his behalf. Jurors B.H. and C.S. stated that they expected a person from
the union would testify on Sansen’s behalf. And Juror L.B. expressed her expectation
that a person from Sansen’s union would have “showed up” at trial to support Sansen.
The trial court’s factual finding that Jurors L.B., B.H., and C.S. decided that Sansen’s
case had no merit for lack of a union representative is supported by the evidence. We
discern no error.
IV
Invited Error
Aerojet asserts that Sansen invited the error of jury misconduct when he argued
that jurors should consider their own union experiences. We reject the argument because
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it (1) has not been preserved for appeal, and (2) has not been properly presented on
appeal.
A.
Failure to Preserve the Issue for Appeal
In opposing the motion for a new trial, Aerojet did not raise the issue of invited
error. Instead, Aerojet raises the issue for the first time on appeal. Aerojet offers no
reason why it could not have presented its argument regarding invited error in the trial
court. For failure to present the issue in the trial court in the first instance, Aerojet has
not preserved the issue for appeal. (In re Carrie W., supra, 110 Cal.App.4th at p. 755.)
B.
Forfeiture
The issue of invited error is also not properly presented in Aerojet’s opening brief.
Aerojet asserts that Sansen “invited jurors to draw on their union experience,” but does
not offer any citations to the record in support of the assertion. We are not required to
search the transcript of a 10-day trial to ascertain whether Aerojet’s assertions are borne
out by the reporter’s transcript. “ ‘ “It is the duty of a party to support the arguments in
its briefs by appropriate reference to the record, which includes providing exact page
citations.” ’ (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
Because ‘[t]here is no duty on this court to search the record for evidence’ (Belli v. Curtis
Pub. Co. (1972) 25 Cal.App.3d 384, 394, fn. 5), an appellate court may disregard any
factual contention not supported by a proper citation to the record (Board of
Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1154; Kim v. Sumitomo Bank
(1993) 17 Cal.App.4th 974, 979).” (Grant-Burton v. Covenant Care, Inc. (2002) 99
Cal.App.4th 1361, 1379.) Thus, the issue of invited error is deemed forfeited.
V
Denial of Motion for Reconsideration
Aerojet argues that the trial court erred in denying the motion for reconsideration
on grounds that the court lost jurisdiction more than 75 days after the first notice of entry
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of judgment. In so arguing, Aerojet acknowledges that Jones v. Sieve (1988) 203
Cal.App.3d 359 (Jones) compels a different result. Aerojet urges us to conclude that
Jones was wrongly decided. We agree with the reasoning of Jones and affirm the trial
court’s denial of Aerojet’s motion for reconsideration.
A.
Timing
On August 6, 2019, Aerojet served notice of entry of judgment on Sansen. That
same day, Sansen filed his motion for a new trial. The trial court granted the motion for a
new trial on October 18, 2019. Aerojet filed a motion for reconsideration of the order
granting a new trial on October 21, 2019, which was 76 days after Aerojet filed its notice
of entry of judgment. The trial court denied the motion for reconsideration on grounds
that it lacked jurisdiction to hear Aerojet’s motion.
B.
Limitations Period of 75 Days
Code of Civil Procedure section 660, subdivision (c), provides that – with an
exception not applicable here – “the power of the court to rule on a motion for a new trial
shall expire . . . 75 days after service on the moving party by any party of written notice
of entry of judgment, . . . or if that notice has not been given, 75 days after the filing of
the first notice of intention to move for a new trial.” The limitation period in section 660
“is mandatory and jurisdictional.” (Jones, supra, 203 Cal.App.3d at p. 369, citing Siegal
v. Superior Court (1968) 68 Cal.2d 97, 101 (Siegal).) The Jones court noted that our
“Supreme Court held [in Siegal] that ‘an order made after the 60-day[1] period purporting
to rule on a motion for new trial is in excess of the court’s jurisdiction and void.’ ”
1 At the time of decision in Jones, Code of Civil Procedure section 660 provided for
a 60-day limitations period. (Jones, supra, 203 Cal.App.3d at p. 369.) Section 660 has
been amended to extend the 60-day limitations period to the current 75 days. (Stats.
2018, ch. 317, § 1.)
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(Jones, at p. 369.) The Jones court further explained that “the statute which provides for
a motion to reconsider ([Code Civ. Proc., ]§ 1008) does not, itself, limit the time within
which the court must make its new order after granting reconsideration. Therefore, if a
trial court could reconsider a motion for new trial after the expiration of the 60-day
limitation mandated by section 660, the purpose and effect of section 660 would be
nullified and the power of the court to rule on a motion for a new trial would be extended
indefinitely.” (Id. at p. 370.)
Under the plain meaning of Code of Civil Procedure section 660, subdivision (c),
the trial court in this case lost jurisdiction to rule on motion for reconsideration before
Aerojet filed the motion. (Jones, supra, 203 Cal.App.3d at p. 369; Siegal, supra, 68
Cal.2d at p. 101.) Aerojet, however, urges us to reject the reasoning and result in Jones
(and presumably Siegal). Aerojet reasons that the trial court’s order granting a new trial
“ ‘vacates the verdict’ ” so that “it also vacated the 75-day deadline tied to that judgment
under [Code of Civil Procedure ]section 660[ subdivision ](c).” Essentially, Aerojet
argues that the lack of a judgment resulted in a lack of any deadlines triggered by the
judgment. We are not persuaded.
The correct approach is that taken by the courts in Jones and Siegal which
recognized that the power to grant a motion for reconsideration without any regard for the
limitations period imposed by Code of Civil Procedure section 660, subdivision (c),
would allow a trial court to grant a motion for new trial at any time – no matter how long
after a judgment that the motion would be made. (Jones, supra, 203 Cal.App.3d at
p. 369; Siegal, supra, 68 Cal.2d at p. 101.) We adhere to the rationale of these cases and
conclude that the trial court properly denied the motion for reconsideration for lack of
jurisdiction.
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DISPOSITION
The order granting a new trial and the order denying the motion for
reconsideration are affirmed. Sansen shall recover his costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1) & (2).)
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
HULL, J.
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